Wake Forest Law Review

By: Jason Wiener

Francis Dominic Murnaghan, Jr. was born in Baltimore, Maryland on June 20, 1920.[1]  After he received an undergraduate degree from Johns Hopkins University in 1941, he served his country during World War II as a U.S. Naval Reserve Lieutenant from 1942 to 1946.[2]  Upon graduating from Harvard Law School in 1948, he went into private practice in Pennsylvania until 1950 and then served as a staff attorney for the U.S. Department of State’s High Commission on Germany from 1950 to 1952.[3]  Before taking the bench, Judge Murnaghan was a partner at Venable, Baetjer and Howard and served as the Assistant Attorney General for the State of Maryland.[4]

From 1967 to 1970, Judge Murnaghan was president of the Baltimore City School Board.[5]  He served as president and then chairman of the Walters Art Gallery from 1963 until being named chairman emeritus in 1985.[6]  Known for his participation in the public and political spheres in Baltimore, he assisted in the successful campaigns of Senator Paul Sarbanes in 1976 and Governor Harry Hughes in 1978.[7]

On May 8, 1979, he was nominated to the U.S. Court of Appeals for the Fourth Circuit by Jimmy Carter.[8]  While on the bench, Judge Murnaghan wrote over 500 opinions and more than half as many concurrences and dissents.[9]  Known for his compassion and professionalism, his opinions had great impacts in the areas of civil rights, labor, First Amendment law.[10]

Although it is rare for a circuit to reverse a district court finding on a clearly erroneous standard of review, in United States v. Gregory, Judge Murnaghan reversed the lower court’s finding that the Sheriff of Patrick County, Virginia, was not discriminating against women in the hiring of deputies.[11]  Judge Murnaghan stated that the district court erred in its factual findings and found that the record indicated that Sheriff Gregory routinely engaged in discriminatory practices against women in violation of Title VII.[12]

In a notable dissent, Judge Murnaghan alone argued against the constitutionality of a Virginia statute that allowed the Commonwealth to collect the DNA of all convicted felons for a law enforcement data bank.[13]  Judge Murnaghan believed that the Commonwealth did not justify the statute with an important state interest that outweighed non-violent felons’ reasonable expectations of privacy.[14]  He went on to warn of his “deep, disturbing, and overriding concern that, without a proper and compelling justification, the Commonwealth may be successful in taking significant strides towards the establishment of a future police state, in which broad and vague concerns for administrative efficiency will serve to support substantial intrusions into the privacy of citizens.”[15]

Judge Murnaghan’s contributions helped strengthen the foundations of democracy and equality, and he will be remembered for his devotion to civil rights.[16]  On August 31, 2000, the Honorable Francis Dominic Murnaghan, Jr. died at the age of 80.[17]  Upon his death, the Baltimore Sun avowed, “Judge Murnaghan was one of the most admired figures in the legal establishment for his urbane scholarship, legal knowledge, and public spirit.”[18]


[1] Francis Dominic Murnaghan, Jr., Fed. Jud. Ctr., https://www.fjc.gov/node/1385506 (last visited Oct. 14, 2018).

[2] Id.

[3] Id.

[4] Biography of Judge Murnaghan, Francis D. Murnaghan Appellate Advocacy Fellowship, http://www.murnaghanfellowship.org/judge_murnaghan (last visited Oct. 14, 2018).

[5] Longtime Federal Appellate Judge Francis D. Murnaghan Dies at 80, Wash. Post (Sept. 1, 2000),  https://www.washingtonpost.com/archive/local/2000/09/01/longtime-federal-appellate-judge-francis-d-murnaghan-dies-at-80/d1be1771-8f0b-4d10-b094-77d7ac3820ba/?noredirect=on&utm_term=.1823226946fb.

[6] Id.

[7] Id.

[8] Fed. Jud. Ctr., supra note 1.

[9] Biography of Judge Murnaghan, supra note 4.

[10] Id.

[11] United States v. Gregory, 871 F.2d 1239, 1241 (4th Cir. 1989).

[12] Id. at 1247.

[13] Jones v. Murray, 962 F.2d 302, 311 (4th Cir. 1992).

[14] Id. at 312.

[15] Id. at 315.

[16] Biography of Judge Murnaghan, supra note 4.

[17] Fed. Jud. Ctr., supra note 1.

[18] Confirmation Hearing on the Nomination of Claude A. Allen, of Virginia, to be Circuit Judge for the Fourth Circuit; and Mark R. Filip, of Illinois, to be District Judge for the Northern District of Illinois Before the S. Comm. on the Judiciary, 108th Cong. 5 (2003) (statement of Sen. Paul S. Sarbanes).

By Samuel D. Gilleran and Nicholas T. Pappayliou


On August 22, 2018, the Fourth Circuit decided United States v. Hodge,[1] clarifying whether the government may ask a district court to designate a conviction as an Armed Career Criminal Act (“ACCA”) predicate conviction, when that conviction was not so designated during the initial sentencing.  In 2011, Garnett Hodge pleaded guilty to possession of crack cocaine with intent to distribute and possession of a firearm as a felon.[2]  Because of his prior convictions, Mr. Hodge was eligible for a “sentence enhancement” under the ACCA.[3]  The ACCA states that a person convicted of possession of a firearm as a felon, who also has three prior “violent felony” or “serious drug offense” convictions, must receive a mandatory minimum of fifteen years in prison.[4]  Mr. Hodge’s Presentence Investigation Report (“PSR”) designated exactly three qualifying, or ACCA predicate, convictions: a July 1992 felony drug possession with intent to distribute, a July 1998 felony drug possession with intent to distribute, and three counts of misdemeanor reckless endangerment in 1998.[5]  The drug possession felonies qualified as “serious drug offense[s],” and – at the time – the misdemeanor reckless endangerment qualified as a “violent felony.”[6]  But another section of Mr. Hodge’s PSR, labeled “criminal history,” enumerated seven additional convictions.[7]  One of those convictions, a March 1992 felony cocaine possession with attempt to distribute, could have been designated in the PSR as an ACCA predicate conviction, as it was identical to the other cocaine possession charges that were so designated.[8]  But, for some reason, the Probation Office that prepared the PSR failed to designate the March 1992 felony as a qualifying predicate conviction, and the Government did not object to the Probation Office’s failure to so designate that conviction.[9]

After his plea, Mr. Hodge was sentenced to 188 months of imprisonment on the cocaine charge and 204 months of imprisonment on the firearm charge, running concurrently.[10]  In 2014, Mr. Hodge filed his first motion to vacate his sentence in district court, but it was dismissed as untimely.[11]  In 2015, however, the United States Supreme Court “substantially narrowed” the ACCA’s definition of a “violent felony” in Johnson v. United States[12] (referred to as Johnson II).[13]  Specifically, Johnson II struck down the ACCA’s “residual clause,” which classified “conduct that presents a serious potential risk of physical injury to another” as a “violent felony” for purposes of sentence enhancement.[14]  The Supreme Court then declared in Welch v. United States[15] that Johnson II would apply “retroactively on collateral review.”[16]  Pursuant to those rulings, the Fourth Circuit gave Mr. Hodge permission to file another motion to vacate his sentence.[17]

The Parties’ Arguments and the District Court’s Ruling

Mr. Hodge asserted that his reckless endangerment conviction was only an ACCA predicate conviction because of the now-unconstitutional residual clause.[18]  Because the reckless endangerment conviction no longer qualified as an ACCA predicate conviction, he only had two predicate convictions and the mandatory minimum of fifteen years did not apply.[19]

The Government agreed with Mr. Hodge that the reckless endangerment conviction no longer qualified as an ACCA predicate conviction, and it initially recommended to the district court that Mr. Hodge be resentenced.[20]  But ten days after filing papers agreeing with Mr. Hodge, the Government evidently discovered the March 1992 drug conviction could have served as a predicate conviction, if it had been so designated.[21] The Government therefore chose to argue that Mr. Hodge had four predicate convictions, and that the failure to designate the March 1992 conviction on the PSR notwithstanding, that conviction could be substituted for the reckless endangerment conviction that no longer qualified as an ACCA predicate.[22]  In order to excuse its failure to object to the Probation Office’s non-designation of the March 1992 conviction, the Government claimed that it would have been superfluous to designate more than three convictions.[23]

The district court sided with the Government and denied Mr. Hodge’s motion, ruling that courts “should ordinarily examine the defendant’s entire criminal record” when evaluating eligibility for ACCA sentence enhancement.[24]  The district court pointed to Mr. Hodge’s three convictions that could have been listed as ACCA predicates, although only two were so listed.[25]  In the district court’s view, because Mr. Hodge had the requisite three predicate convictions, it was of no consequence that the Government had failed to designate one of them in the PSR.[26]  Mr. Hodge then appealed to the Fourth Circuit, asking whether the Government would indeed be permitted to substitute the “potential ACCA predicate conviction that was listed in [Mr. Hodge’s] PSR but never designated nor relied upon as an ACCA predicate.”[27]

The Fourth Circuit’s Holding

Chief Judge Gregory, writing for the court, held that the Government was not permitted to substitute the undesignated potential ACCA predicate conviction for the conviction that no longer qualified.[28]  The Government could not substitute the undesignated conviction because it “failed to provide Hodge with sufficient notice of its intent to use this conviction to support an ACCA enhancement.”[29]  Defendants are entitled to “adequate notice of . . . the convictions that may support [an ACCA] enhancement,”[30] so that they may “contest the validity or applicability of the prior convictions upon which [the] statutory sentencing enhancement is based.”[31]  Applying the canon of expressio unius est exlusio alterius, the Government had indicated “an intentional exclusion” of the March 1992 conviction because the PSR expressly identified the three other convictions as ACCA predicates.[32]  And because the Probation Office did not designate the March 1992 conviction as an ACCA predicate and the Government did not object to that failure, if Mr. Hodge had wanted to challenge “the validity or applicability” of that conviction, he himself would have had to draw attention to it, an anomaly that the court said “would undermine the adversarial process.”[33]

The court rejected the Government’s contention that designating more than three predicate convictions would have been superfluous by noting that “the U.S. Probation Office often designates more than three convictions as ACCA predicates,”[34] and the Government’s inclusion of two convictions for felony possession of cocaine with intent to distribute but exclusion of the third conviction for the same crime militated the conclusion that the “exclusion was deliberate.”[35]

The court also noted that when a defendant fails to timely contest the designation of a crime as an ACCA predicate, the issue is waived on collateral review.[36]  In the court’s view, it is only fair to require the Government to meet the same standard.[37]  Citing a recent case in the First Circuit, the court recognized that “it is unfair to allow parties to surprise one another with new argument that they did not make at the appropriate procedural juncture.”[38]  In Mr. Hodge’s case, “the appropriate procedural juncture” was at sentencing.[39]  If the Government ever wanted to rely on the March 1992 conviction, it should have objected to the PSR “during the sentencing proceedings.”[40]  Because of the unfairness that the opposite rule would work on the defendant, the court held “that the Government must identify all convictions it wishes to use to support a defendant’s ACCA sentence enhancement at the time of sentencing.”[41]

This decision comports with the Eleventh Circuit’s holding in Bryant v. Warden, FCC Coleman–Medium.[42]  In that similar situation, a defendant had three designated ACCA predicate convictions, but a change in the law left one of those designations invalid; meanwhile, the Government urged that court to substitute a previously undesignated burglary conviction as the necessary third ACCA predicate conviction.[43]  The Eleventh Circuit refused to do so, relying on the Government’s failure to object to the district court’s non-designation of that conviction as a predicate conviction.[44]  Similarly, in United States v. Petite,[45] the Eleventh Circuit flatly stated, “The government cannot offer for the first time on appeal a new predicate conviction in support of an enhanced ACCA sentence.  The argument should have been made prior to or during sentencing. . . .”[46]


When the Government fails to designate a potential ACCA predicate conviction as such, it may not then seek it so designated in later proceedings to support an ACCA enhancement.[47]  The Fourth Circuit therefore reversed the district court’s denial of Mr. Hodge’s motion to vacate his sentence and remanded for resentencing.[48]  As of this writing, the resentencing hearing has not yet been scheduled.

[1] 902 F.3d 420 (4th Cir. 2018).

[2] Id. at 423.

[3] Id.

[4] Id. at 423–24.

[5] Id. at 424.

[6] Id.

[7] Id.

[8] Id. at 424–25.

[9] Id. at 426.

[10] Id. at 424.

[11] Id.

[12] 135 S. Ct. 2551 (2015).

[13] Hodge, 902 F.3d at 424–25.

[14] Id. at 425.

[15] 136 S. Ct. 1257 (2016).

[16] Hodge, 902 F.3d at 425.

[17] Id. at 424.

[18] Id. at 425.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id. at 428 n.4.

[24] Hodge v. United States, No. 1:16-CV-781, 2016 WL 7480397, at *3 (M.D.N.C. Dec. 29, 2016).

[25] Id. at *2.

[26] Id.

[27] Hodge, 902 F.3d at 426.

[28] Id. at 427.

[29] Id.

[30] Id. (quoting United States v. O’Neal, 180 F.3d 115, 125–26 (4th Cir. 1999)).

[31] Id. (quoting United States v. Moore, 208 F.3d 411, 414 (2d Cir. 2000)).

[32] Id. at 427–28.

[33] Id. at 428.

[34] Id. at 428 n.4.

[35] Id. at 428.

[36] Id. at 429.

[37] Id.

[38] Id. (quoting United States v. Fernandez-Jorge, 894 F.3d 36, 54 n.16 (1st Cir. 2018)).

[39] Id.

[40] Id.

[41] Id. at 430.

[42] 738 F.3d 1253, 1256–57 (11th Cir. 2013), overruled on other grounds by McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017).

[43] Id. at 1279.

[44] Id.

[45] 703 F.3d 1290 (11th Cir. 2013), abrogated on other grounds by Johnson II, 135 S. Ct. 2551.

[46] Id. at 1292 n.2.

[47] Hodge, 902 F.3d at 430.

[48] Id. at 432.

By: Matthew Welch & Gilbert Smolenski

On March 1, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for United States v. Brian Bowman.  The court held that Bowman’s Fourth Amendment right, freedom from unreasonable seizures, was violated and reversed the district court ruling.

I. Facts and Procedural History

In the predawn hours the morning of June 20, 2015, Officer Waycaster was patrolling on Route 25 in Henderson County, North Carolina.  He received a tip from the DEA that two individuals driving a red, older model Lexus could be narcotics runners.  The DEA also provided a license plate number for the car.  At 3:40 a.m., Officer Waycaster spotted an older red Lexus.  Rather than stopping the vehicle based on information from the DEA, Officer Waycaster followed the car “looking for [his] own infractions . . . for [his own] reason to stop the vehicle.”  When the vehicle weaved over a fog line and accelerated to 10 mph over the speed limit, Officer Waycaster pulled the vehicle over, suspecting that the driver may have been under the influence.  The government agrees that the DEA tip should not be considered in any legal analysis.

After stopping the vehicle, Officer Waycaster noticed two men in the vehicle: Bowman, the driver, and Alvarez, the passenger.  Officer Waycaster testified that Bowman appeared nervous because his hands were shaking, he failed to make eye contact with Waycaster, and that his carotid artery was moving, indicating an elevated heart rate.  Officer Waycaster did not see any alcohol or firearms in the vehicle, but he did notice an energy drink in the center console, food wrappers, and a suitcase in the back seat.  Officer Waycaster explained why Bowman was stopped and then asked Bowman to exit the vehicle and go to the patrol car so that Officer Waycaster could check his information.  Alvarez remained in the passenger seat the entire time.

After Bowman exited the vehicle, he consented to a weapons frisk.  Officer Waycaster found no weapons.  Officer Waycaster then told Bowman to sit in the patrol car while Waycaster ran his driver’s license and registration.  While Officer Waycaster was running Bowman’s information, he asked Bowman where he was coming from.  Bowman said that he was heading home after picking up Alvarez from Alvarez’s girlfriend’s house.  He said he was returning the favor because Alvarez had done the same for him in the past. When questioned about the address of Alvarez’s girlfriend’s house, Bowman said he did not know it but that it was in his car’s GPS.  Officer Waycaster also asked Bowman what he did for a living.  Bowman replied, saying that he was a welder but was currently unemployed.  Bowman also said that he recently bought the Lexus off Craigslist.  Officer Bowman testified that this was a suspicious activity because “it was a known practice with narcotics traffickers to either use rental vehicles or use multiple, different vehicles, or buy and sell vehicles to transport narcotics.”  Officer Waycaster, believing that Bowman was not under the influence, then issued Bowman a ticket for speeding and unsafe movement of the vehicle.

Bowman then began to exit the vehicle but Officer Waycaster asked if he could speak further with Bowman.  Bowman consented.  After another round of questions about what Bowman and Alvarez had been doing that night, Officer Waycaster, who was seated in the patrol car with Bowman said that he “was going to ask [Alvarez] questions if you don’t mind, okay?”  Bowman responded, “okay,” and remained in the vehicle.  As Officer Waycaster exited the patrol car he told Bowman, “just hang tight right there, okay.”  Bowman responded with, “oh, okay.”  Office Waycaster testified that at this point, Bowman was not free to get out of the patrol car because Waycaster had developed, from the traffic stop alone, reasonable suspicion of criminal activity.

Office Waycaster then went back to the Lexus and interviewed Alvarez about what had transpired before the two men were pulled over.  Alvarez’s story conflicted with Bowman’s.  Officer Waycaster then return to the patrol car and asked Bowman if there was meth in the Lexus, to which Bowman responded no.  Bowman then refused to let Officer Waycaster search the Lexus.  Thereafter, Officer Waycaster removed Alvarez from the Lexus and placed him in the patrol car with Bowman.  Then Office Waycaster summoned a K-9 team.  The K-9 team passed around the outside of the Lexus.  The dog alerted an officer that illegal narcotics were present in the vehicle.  Thereafter, Office Waycaster and the K-9 handler searched the interior of the car.  They found meth, digital scales, and containers of ammunition.

Bowman was charged with possession with intent to distribute methamphetamine.  Bowman filed a motion to suppress the methamphetamine evidence, arguing that Officer Waycaster unlawfully prolonged the completed traffic stop without consent or reasonable suspicion.  The district court followed the recommendation of the magistrate judge in denying the motion to suppress.  The magistrate judge admitted that Bowman was not free to leave the patrol car but that the prolonged detention was permissible because “Waycaster had a justified, reasonable suspicion that Defendant Bowman was engaged in criminal activity.” The judge said that the totality of the circumstances supported this finding.  Bowman then filed an appeal.

II. Standard of Review

The Fourth Circuit reviews the district court’s determination that the officer had a reasonable suspicion to prolong the traffic stop de novo.

III. Reasoning

First, a traffic stop must be reasonable.  Here, Bowman does not challenge the reasonableness of the traffic stop.  Bowman was swerving and traveling 10 mph over the speed limit.  Instead Bowman’s Fourth Amendment challenge rests on the unreasonableness of his prolonged detention in the patrol car. The Fourth Amendment allows an officer to conduct an investigation unrelated to the reasons for the traffic stop as long as it does not lengthen the roadside detention.  To extend the length of the detention beyond the time necessary to accomplish the traffic stop’s purpose, an officer must have reasonable suspicion or receive the driver’s consent.  Here, the officer did not receive Bowman’s consent or have a reasonable suspicion.

The government argued that Bowman consented to the prolonged detention when he said “okay” after Officer Waycaster asked him to “hang tight right there, ok?”  However, under a reasonable person standard, the court said that this was not consent by Bowman.  Bowman never had time to respond to Officer Waycaster before Waycaster exited the vehicle and many would feel they were not free to leave in a similar situation. Furthermore, Waycaster was not asking a question, instead he was instructing Bowman what to do.  Thus, when Bowman remained in the patrol car as the officer went to question Alvarez, the encounter was no longer a consensual one but instead became a non-consensual seizure.

After the Fourth Circuit concluded the search constituted a non-consensual seizure, the Court then analyzed whether Waycaster’s “prolonged seizure was justified by reasonable suspicion.”  The Court noted there is no precise definition for what constitutes reasonable suspicion.  Instead, reasonable suspicion is a commonsense, nontechnical standard that considers the realities of everyday life.  The bar for reasonable suspicion is less than the probable cause standard and the facts articulated by the stopping officer and trial court must be taken in their totality.  However, each factor can be analyzed separately by the court before being taken together in a full consideration of the circumstances surrounding the traffic stop.

The Fourth Circuit focuses on four specific factors in its analysis.  First, Waycaster noted that both Bowman and Alvarez appeared to be nervous.  However, a driver’s nervousness is not a good indicator since most citizens are nervous when dealing with police.  The record indicated that Bowman and Alvarez did not exhibit any signs of nervousness above the norm, and the government conceded Bowman was calm once exiting the vehicle.  Moreover, although a suspect’s increased heart rate, which can be evidenced by a suspect’s throbbing carotid artery, can help support there was a reasonable suspicion of criminal activity, the present facts do not show Bowman demonstrated nervousness beyond the norm. The fact that Bowman remained calm in the patrol car and failed to make eye contact with an officer is not indicative of criminal behavior.  Thus, the first factor weighed in favor of the Bowman.

Second, Waycaster stated that several articles in the car, specifically clothes, food, and an energy drink, helped give rise to a reasonable suspicion.  However, these items are consistent with innocent travel and “in the absence of contradictory information,” cannot reasonably imply criminal activity.  While Bowman may have made false statements about his travel plans, the government failed to connect that fact to any wrongdoing in the case.  Therefore, just the articles alone cannot be used to established untruthfulness, and subsequently reasonable suspicion.

Third, the district court noted that Bowman’s inability to recall Alvarez’s girlfriend’s address contributed to Waycaster’s reasonable suspicion.  But, the Fourth Circuit stated this was entirely reasonable, as it is clear from the video recording that Bowman repeatedly said he used the car’s GPS to find the house, and Waycaster could find the address by looking at the car’s GPS history.  The government failed to connect Bowman’s response with criminal activity, and the Fourth Circuit stated it is reasonable that Bowman did not know the address and was relying on GPS in a dark, unfamiliar area.

Finally, Waycaster believed Bowman’s vehicle purchases gave suspicion of criminal activity since he thought it was strange Bowman could afford to purchase multiple vehicles while unemployed and the use of multiple cars was a known practice of drug traffickers.  The Fourth Circuit readily disposed of Bowman’s vehicle purchasing habits, noting that Waycaster made “unsubstantiated assumptions.”  Even though Bowman was unemployed, there are numerous possible explanations to explain the car purchases that are all within the confines of the law.  Likewise, innocent travelers may use multiple vehicles, some of which they could buy from Craigslist, and that fact is entitled to little weight.

Consequently, none of the factors alone provide a basis for reasonable suspicion.  Even when looking at the totality of the circumstances, as mandated by precedent, the Fourth Circuit similarly found that the “combination of wholly innocent factors” did not give rise to reasonable suspicion.  Therefore, the Fourth Circuit reversed the district court, as Bowman’s motion to suppress should have been granted.


By Ali Fenno

On November 23, 2016, the Fourth Circuit issued a published opinion in the criminal case of Rodriguez v. Bush.  In Rodriguez, the Fourth Circuit addressed whether the failure of Nicanor Perez Rodriguez’s (“Rodriguez”) trial counsel, James Ervin (“Ervin”), to object to a trial judge’s rejection of Rodriguez’s plea agreement constituted “ineffective assistance of counsel” that justified relief under 28 U.S.C. § 2254.  After applying a deferential review standard for ineffective assistance and state-adjudicated § 2254 claims, the Fourth Circuit held that Ervin’s conduct did not constitute “ineffective assistance of counsel” because the alleged omitted objection would have been meritless and thus did not prejudice Rodriguez’s case.  Accordingly, the Fourth Circuit affirmed the trial court’s denial of Rodriguez’s § 2254 petition.

Factual and Procedural Background

In 2006, a South Carolina trial court convicted Rodriguez on multiple counts of drug trafficking and sentenced him to 45 years’ imprisonment.  He had accepted a plea agreement on the first day of trial that recommended a 20-year sentence, but the plea agreement had been rejected by the trial judge without explanation the very same day.

In 2010, Rodriguez filed a motion for post-conviction relief (the “PCR Motion”), alleging that the rejection of the plea agreement constituted a violation of his federal due process rights and that Ervin provided ineffective assistance of counsel by failing to object to the rejection and thus preserve the issue for appeal.  The state court denied the PCR Motion, holding that Rodriguez failed to show that (1) Ervin should have objected to the plea deal, and (2) Ervin’s failure to object prejudiced Ervin’s case.  The Supreme Court of South Carolina affirmed.

Rodriguez then filed this § 2554 petition in the United States District Court for the District of South Carolina.  The district court denied the petition, and Rodriguez appealed.

Issues on Appeal and Standard of Review

In deciding whether Rodriguez’s § 2254 petition should have been granted, the Fourth Circuit first identified a de novo standard of review for § 2554 issues.  But it then noted that § 2254(d) only permits a federal court to grant a § 2254 petition previously adjudicated by a state court on the merits when the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The court then reasoned that because the trial court addressed whether Ervin’s conduct constituted “ineffective assistance of counsel” to deny Rodriguez’s PCR Motion, the § 2254 petition could only be granted if the Fourth Circuit determined that the state court unreasonably applied the “ineffective assistance of counsel” standard.  The Fourth Circuit identified the correct standard as a two-pronged test articulated in Strickland v. Washington, which enables a party to prevail on an ineffective assistance of counsel claim if he or she demonstrates that (1) “counsel’s performance was deficient” and (2) “the deficient performance prejudiced the defense.”  Accordingly, the single issue on this appeal was whether any reasonable argument could be made that Ervin satisfied the Strickland test.

Failure to Meet Strickland’s Prejudice Prong

To address this issue, the Fourth Circuit first noted that pursuant to Harrington v. Richter, review of the Strickland test is highly deferential to the state court, and “doubly” deferential when applied in conjunction with § 2554.  The court then looked at the prejudice prong of the Strickland test, reasoning that it did not need to first address the issue of a deficiency because it would be so easy to dispose of the ineffectiveness claim on prejudice grounds.  It articulated that to demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  The court further defined a reasonable probability as “a probability sufficient to undermine confidence in the outcome,” and noted that, pursuant to Lockhart v. Fretwell, a petitioner will not show prejudice if the “omitted objection” is “wholly meritless under current governing law.”

In applying these rules to the facts of Rodriguez, the court concluded that the Ervin’s “omitted objection” to the rejection of the plea agreement was “wholly meritless.”  To come to this conclusion, it noted that in Missouri v. Frye, Santobello v. New York, and Lafler v. Cooper the Supreme Court clearly articulated that there is no federal due process right that a plea agreement be accepted by a judge.  Thus, the Fourth Circuit determined that any objection made by Ervin asserting that the plea agreement’s rejection violated Rodriguez’s federal due process rights would have been entirely without merit.  Accordingly, Rodriguez was not prejudiced by Ervin’s failure to make a meritless claim, and Ervin’s omission did not amount to an “ineffective assistance of counsel” justifying relief under § 2254.


Because Ervin’s omitted objection was wholly meritless, the Fourth Circuit determined that it was reasonable for the district court to conclude that Rodriguez did not demonstrate the requisite prejudice for an ineffective assistance of counsel claim.  Accordingly, the Fourth Circuit affirmed the district court’s judgment, holding that the district court did not err when it denied Rodriguez’s request for relief under 28 U.S.C. §2254.

By Kelsey Mellan

On February 9, 2017, the Fourth Circuit issued a published opinion in United States v. Spencer, a criminal appeal of an allegedly unreasonable sentence stemming from a “threatening communication” charge. Todd Spencer (“Spencer”) pleaded guilty to sending threatening communication to a federal employee in violation of 18 U.S.C. § 876(c). He was subsequently sentenced to 45 months in prison. Spencer challenged this sentence on both procedural and substantive grounds. The District Court for the Eastern District of Virginia determined this sentence was reasonable and upheld Spencer’s conviction. The Fourth Circuit affirmed, holding the 45-month sentence was both procedurally and substantively reasonable.

Facts & Procedural History

On September 12, 2013, Spencer sent a threatening letter covered in a mysterious white powder to the clerk’s office of the federal courthouse in Norfolk, Virginia. Parts of the letter read, “The very letter you hold may indeed be the last you hold. This letter may contain on it what takes your last breath…Good luck to you.” The clerk who opened the letter was understandably “disconcerted and afraid.” The U.S. Marshals called to the courthouse instructed her to lock herself alone with the letter in the mailroom until inspectors arrived. Inspectors determined the letter was from Spencer, who was currently an inmate at the Chesapeake City Jail. Once questioned, Spencer admitted to sending the letter and explained that the powder was dried toothpaste, which he included “to enhance the effect of the letter in order to put fear into the reader” that it was poison.

On October 2, 2014, Spencer pleaded guilty to sending a threatening communication in violation of § 876(c). His probation officer prepared a pre-sentence report, which yielded an advisory Sentencing Guideline range of 37 to 46 months based on the sentencing enhancement provisions in U.S. Sentencing Guideline Manual § 2A6.1(b)(1). At the actual sentencing hearing on January 13, 2015, the district court overruled Spencer’s objections to the sentencing range based on the “very, very serious” nature of the offense and the “devastating impact” on the victim. On appeal, the Fourth Circuit determined that the district court erred in applying the sentence enhancement because Spencer’s use of harmless toothpaste did not suggest an intent to carry out the threat and/or injure the clerk.

The district court held a resentencing hearing on January 12, 2016 where no sentence enhancements were applied. In order to “afford adequate deterrence” to similarly situated offenders and provide “just punishment” to Spencer, the district court decided to upwardly depart from the advisory Guidelines sentencing range (21 to 27 months) and imposed a sentence of 45 months. This timely appeal followed, in which Spencer argued the 45-month sentence was both procedurally and substantively unreasonable.

Procedural Unreasonableness

Spencer first contended that the district court erred by failing to provide advance notice of its intention to depart from the advisory Guidelines range, in violation of the Federal Rules of Criminal Procedure 32(h). He claimed the district court repeatedly characterized the sentence as an upward “departure,” yet never advised the parties that it was contemplating such an action. Thus, he claims he was deprived of the opportunity to challenge the increased sentence.

Because the circumstances surround threats, like the one made by Spencer, vary substantially, § 2A6.1 of the Sentencing Guidelines gives district courts latitude to depart from the Guidelines. District courts are allowed to apply other generic departures as necessary. At the resentencing hearing, the district court repeatedly stated that it would “upwardly depart” from the Guidelines. Additionally, Spencer should have realized that he would receive a longer sentence then what was originally advised by the Guidelines, based on his earlier sentence for this charge. Therefore, Spencer had every reason to believe that the court might adopt an above-Guidelines sentence.

Spencer also had ample opportunity to address the district court’s concerns about the letter’s effect upon the victim and the record does not indicate that advanced notice of the sentence deviation would have affected the parties’ presentation of the facts in any material way. Thus, the Fourth Circuit determined the 45-month was not procedurally unreasonable.

 Substantive Unreasonableness

Spencer also asserts that his 45-month sentence is substantively unreasonable because it is too long. He insisted that the severity of the sentence rested on improper sentencing factors and unfounded factual findings. According to the Fourth Circuit, the district court based its sentence on the intended effect on the victim, which was entirely proper grounds given the seriously nature of the threat accompanied by ostensible poison. The district court tailed its sentence in light of traditional sentencing factors such as deterrence and punishment. The Fourth Circuit determined the inference drawn by the district court lay within the bounds of its discretion.

However, this court has previously determined that district courts must explain the basis for their sentence. In United States v. Carter, the Fourth Circuit instructed that a district court must “justify its sentence with an individualized rationale.” But still, a balance must be struck between providing justification for a sentence and entitling district court decisions “due deference.” Since the district court in this instance based its decision on the factors of deterrence and punishment, the sentence is adequately justified and warranting due deferencTherefore, the Fourth Circuit held the 45-month sentence was not substantively unreasonably.


Thus, the Fourth Circuit affirmed the judgment of the district court.

By Ali Fenno

On October 25, 2016, the Fourth Circuit issued a published opinion in the criminal case of Dingle v. Stevenson. In Dingle, the Fourth Circuit addressed whether the Supreme Court’s holding in Roper v. Simmons, which invalidated the use of capital punishment against juvenile offenders, should apply retroactively to undo a guilty plea made by Ronald Donald Dingle (“Dingle”). After examining the scope of the holding in Roper and the nature of plea bargains, the Fourth Circuit held that Roper cannot apply retroactively to undo a guilty plea and affirmed the lower court’s dismissal of Dingle’s petition.

Lower Courts Repeatedly Dismiss Dingle’s Petitions

In 1993 the state of South Carolina (the “State”) charged Dingle with murder, assault and battery with intent to kill, first degree burglary, kidnapping, pointing a firearm, two counts of possession of a weapon during a violent crime, and two counts of possession of a sawed-off shotgun. Because the State intended to pursue the death penalty, Dingle plead guilty in exchange for life imprisonment with the possibility of parole.

When it was later discovered that the consecutive nature of Dingle’s sentences precluded parole, an integral part of the plea bargain, Dingle filed an application for post-conviction relief (“PCR”). The PCR court vacated his sentences and remanded for sentencing consistent with the intent of the plea agreement or for a new trial.

Several years later, a hearing still had not been held, so Dingle filed a motion for a speedy trial. The hearing was then held on July 28, 2005, and Dingle contended that his guilty plea should be withdrawn. He argued that the benefit of his plea bargain, avoiding the death penalty, was removed by the Supreme Court’s recent decision in Roper, which held that it was a violation of the Eighth Amendment for the death penalty to be used against juvenile offenders. The Court of General Sessions disagreed, rejecting Dingle’s request for a new trial and holding that pleas should be evaluated based on the law that existed in 1995. The South Carolina Supreme Court affirmed this decision, finding that Roper did not remove the benefit of the plea bargain.

Dingle again filed an application for PCR in 2009, arguing that Roper retroactively applied to his case and, as such, his guilty plea was involuntary because it was made to avoid cruel and unusual punishment. However, the PCR court found that Dingle’s claim was barred by res judicata. Dingle’s subsequent appeal and third petition were unsuccessful.

Dingle also filed a petition for a writ of habeas corpus under 28 U.S.C. § 2554 in the United States District Court for the District of South Carolina. He raised four claims of error, but the district court dismissed the claims without prejudice.

On September 13, 2013, Dingle filed the instant § 2554 petition. The petition contested Dingle’s conviction on six grounds, but the district court adopted the magistrate judge’s recommendation to deny the petition in its entirety.

Issues on Appeal

The Fourth Circuit granted a certificate of appealability to determine the single issue of whether Roper may be applied retroactively to invalidate Dingle’s guilty plea. Dingle argued that the holding in Roper invalidated his guilty plea because (1) it was a substantive rule so applied retroactively to his case, and (2) if it would be improper for the state to seek the death penalty against him now, then it was also improper in 1995. Thus, his plea was invalid because it was attempt to avoid cruel and unusual punishment. However, the Fourth Circuit disagreed, concluding that (1) plea bargains are outside the scope of the Roper holding, and (2) the nature of plea bargains support upholding their validity.

Plea Bargains Are Outside the Scope of Roper

The Fourth Circuit first concluded that the holding in Roper was never intended to apply to plea bargains. Although the court conceded that Roper was indeed a substantive rule that could be applied retroactively, it found that the scope of the rule was limited to the actual sentence delivered in a case. Because Dingle did not actually receive the death penalty, attempting to apply the holding in Roper to his own case was “compar[ing] apples and oranges.” The court further noted that the Supreme Court had never before allowed “a substantive rule to stretch beyond the proscribed sentence to reopen guilty pleas with a different sentence.”

Future Legal Developments Cannot Invalidate Plea Bargains

The Fourth Circuit next concluded that the holding in Roper could not invalidate Dingle’s guilty plea because plea bargains are “a bet on the future,” whereby defendants accept both the benefits of a lighter sentence and the risks of losing out on future favorable legal developments. A defendant’s remorse at missing out on those favorable legal developments is not enough to rescind an entire bargain.

The court found support for this contention in Brady v. United States, where the Supreme Court held that a defendant who entered into a plea agreement to avoid capital punishment could not later withdraw his plea agreement when subsequent legal developments made him ineligible for the death penalty. The Supreme Court suggested that defendants who are offered plea bargains must weigh the benefits and risks of such bargains, and the fact that they did not anticipate certain legal developments could not “impugn the truth or reliability of [their] plea.” Accordingly, the Fourth Circuit concluded that when Dingle entered his guilty plea, he accepted the trade-off between present benefits and future risks that is “emblematic” of plea bargains, and his inability to anticipate the favorable outcome in Roper could not invalidate his plea.


The Fourth Circuit concluded that (1) Roper, even applied retroactively, could not invalidate Dingle’s plea, and (2) precedent and policy argued against setting aside Dingle’s plea bargain. Accordingly, it affirmed the district court’s dismissal of Dingle’s petition and held that Roper could not be applied retroactively to invalidate Dingle’s guilty plea.

By: Kristina Wilson

On Friday, October 21, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Wharton. The Fourth Circuit affirmed the District Court’s conviction of the defendant for conspiracy, making a false statement, theft, and embezzlement, all in connection with her unlawful receipt of government benefits. On appeal, the defendant argued that the affidavit upon which the search warrant was based was materially false and thus violated her Fourth Amendment rights. The Fourth Circuit affirmed the District Court’s decision that there was no Fourth Amendment violation because the affidavit’s omitted facts were not material.

Facts and Procedural History

After the death of the defendant’s daughter in 2002, the defendant took her two granddaughters into her home. She began receiving Social Security survivors’ benefits on her granddaughters’ behalf. In 2012, the Government discovered that the defendant’s granddaughters had not lived with the defendant since 2009 and were not receiving their benefits. The Government then launched an investigation into the defendant’s use of the Social Security funds.

Following the investigation, a grand jury indicted the defendant on two counts of theft of government property in violation of 18 USC § 641 and 42 USC § 1381a(a)(3) on January 31, 2013. The grand jury issued a sealed superseding indictment on June 26, 2013, which was unsealed on July 10, 2013. The indictment charged both the defendant and her husband with conspiracy to embezzle, embezzlement, and making false statements. While the indictment remained sealed, on July 1, 2013, a special agent from the Social Security Administrator’s office executed an affidavit in which he asserted that the defendant and her husband lived together in the defendant’s home. The magistrate issued a search warrant based on the agent’s affidavit, and the Social Security Administrator’s office searched the defendant’s home, discovering a number of documents relevant to the criminal charges.

Prior to trial, the defendant moved to suppress all evidence uncovered in the search of her home. The District Court denied her motion to suppress for all evidence except that which was obtained from her second-floor bedroom. Ultimately, the District Court convicted the defendant and her husband for conspiracy to embezzle money in violation of 18 U.S.C. § 371, making false statements in violation of 42 U.S.C. § 1383a(a)(2), and embezzlement in violation of 18 USC § 641.

The Information Was Recklessly Omitted but Not Material

The defendant asserted that special agent’s affidavit was materially false in violation of the Fourth Amendment because it omitted the fact that she and her husband did not live together.

In the affidavit, the special agent asserted that the defendant and her husband lived together on the basis of interviews he conducted with the defendant, her husband, and their children. Both the defendant and her husband stated that they had been married continuously for 43 years and lived together in the defendant’s home. The special agent also discovered that the defendant’s husband’s electricity account provided power to the entire home, not just his basement living space. Additionally, the special agent discovered that Dish Network provided cable television to the entire home with the defendant and her husband both listed as authorized users.

The District Court held that the defendant and her husband did live separately in that the defendant’s husband only occupied the common areas of the home upon invitation and kept the door to his basement living area locked. However, the omission was not material and did not violate the Fourth Amendment.

The Omission Did Not Violate the Fourth Amendment

On appeal, the Fourth Circuit applied a de novo standard of review to the denial of the defendant’s motion to suppress.

According to the Fourth Circuit, the District Court properly addressed the defendant’s claim as a Franks v. Delaware question. Franks v. Delaware, 438 U.S. 154 (1978). Although a Franks analysis usually begins with the threshold question of whether a district court improperly denied an evidentiary hearing, the Fourth Circuit eschewed that preliminary question because the District Court granted the defendant an evidentiary hearing before denying the motion to suppress.

When a defendant asserts that an affiant has omitted material facts in the affidavit, the defendant must prove that the affiant intentionally or recklessly made a materially false statement or omitted material information.

While Franks requires proof of both intentionality and materiality, only materiality was at issue on appeal. An omission is material if it is necessary to the magistrate’s finding of probable cause to support the warrant. When evaluating materiality, a court inserts the omitted facts and then determines whether the corrected affidavit supports probable cause. If it does, there is no Franks violation.

In recent cases United States v. Lull, 824 F.3d 109 (4th Cir. 2016) and United States v. Tate, 524 F.3d 449 (4th Cir. 2008), the Fourth Circuit reversed the defendants’ convictions after concluding that the omitted information in question undermined the entire foundation of the affidavits. In Lull, an officer omitted facts that undermined the reliability of a confidential informant who supplied many of the facts in the affidavit. In Tate, an officer omitted the fact that much of the evidence supporting his affidavit originated from a questionable search of the defendant’s trash. The Fourth Circuit reasoned that if the trash search was illegal, that evidence would have to be suppressed. Without the trash search evidence, the officer’s warrant lacked probable cause.

In contrast, the fact that the defendant and her husband did not live together did not change the fair probability that evidence relating to the defendant’s crimes would be discovered in the common areas of the house. The magistrate was reasonable in concluding that the defendant and her husband lived together because they stated that they lived together, and they shared utilities and cable services, creating a reasonable inference that both individuals used those services throughout the home. Finally, the omitted fact did not call into question the inherent reliability or validity of the affidavit supporting the warrant, unlike in Lull and Tate.


Therefore, the Fourth Circuit affirmed the District Court’s conviction of the plaintiff on all counts.


By George Kennedy

On April 12, 2016, the Fourth Circuit issued its published opinion in the case of United States v. Bailey. The Fourth Circuit vacated a conviction for carjacking in violation of 18 U.S.C. § 2119, finding there was insufficient evidence to establish that Defendant had the specific intent necessary to sustain a federal carjacking conviction.

High-Speed Police Pursuit and Subsequent Carjacking 

On the night of April 17, 2014 in Durham, North Carolina, a police officer observed Defendant Kenneth Lee Bailey, Jr., operating a vehicle with its tag lights out. The officer decided to make a traffic stop, and accordingly maneuvered behind Defendant’s car and turned on the lights of her patrol car. At this point, Defendant sped up and darted down a one-way street in excess of 25 miles per hour above the posted speed limit. The police officer did not follow Defendant down the one-way street, out of a concern for the safety of other motorists, but instead followed Defendant from a parallel street.

Moments later, the officer came upon Defendant’s car which had crashed head-on into a stone wall. The police officer approached the scene of the accident and heard the cries of a child. While the officer went to check on the other passengers in Defendant’s car, Defendant fled the scene on foot to a nearby McDonald’s. After verifying that all passengers were unharmed, the officer continued her pursuit of Defendant. The officer reached the McDonald’s, where the officer discovered a man inside frantically screaming that his truck had been stolen.

At trial, an eyewitness testified that Defendant had stolen his truck in the parking lot of the McDonald’s. According to the testimony, Defendant approached the witness’s car and asked the witness for a ride, promising payment. When the witness refused, Defendant forced his way in, told the witness to “drive, drive, drive” and placed something “hard and cold” to the back of the witness’s neck. Fearing for his life, the witness leaped from the truck, and Defendant then went to the driver’s seat and drove witness’s truck away from the McDonald’s. After another high-speed pursuit, police officers finally caught up with Defendant and arrested him.

Trial at the District Court and Assignments of Error

At trial, the jury found Defendant guilty of carjacking in violation of 18 U.S.C. § 2119 and the district court sentenced Defendant to 106 months in prison. During the trial, however, no witness testified that they had seen Defendant with a weapon. Defendant appealed, arguing that there was insufficient evidence to support the jury’s verdict that he was guilty of carjacking as defined under 18 U.S.C. § 2119. Specifically, Defendant asserted that evidence was lacking to establish that Defendant possessed the specific intent required to sustain a carjacking conviction under the federal carjacking statute.

Fourth Circuit Vacates the Judgment on Sufficiency of Evidence Grounds

The Fourth Circuit held that the government failed to proffer sufficient evidence to sustain a federal carjacking conviction against Defendant, specifically in regards to the intent element. Under 18 U.S.C. § 2119, a person commits the crime of carjacking if he, “with the intent to cause death or serious bodily harm[,] takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so.” To satisfy the specific intent element of the crime, the government must show that the defendant “was conditionally prepared to” kill or seriously harm the driver if the driver “failed to relinquish the vehicle.”

To explain why Defendant lacked the requisite intent to sustain a federal carjacking conviction, the Fourth Circuit first looked to precedent. The Court cited to ten different cases in which federal carjacking convictions were upheld and found that in each case, the Defendant threatened his or her victim with a real weapon and/or physically assaulted his or her victim. Therefore, the Fourth Circuit found reason to distinguish the case at bar from precedent since the Defendant in this case did not physically assault his victims nor was there evidence that Defendant had ever used a real weapon to threaten his victims. Instead, there was only evidence that Defendant had placed something “hard and cold” to a victim’s neck. From this evidence, the Fourth Circuit concluded that while Defendant clearly meant to scare his victim there was no evidence to support a finding that Defendant was prepared to kill or seriously harm his victim, as required under 18 U.S.C. § 2119.

As additional support, the Fourth Circuit looked to the U.S. Supreme Court case of United States v. Holloway. There, the Supreme Court held that “an empty threat, or intimidating bluff,. . . standing on its own is not enough to satisfy § 2119’s specific intent element.” The Fourth Circuit found that the language from Holloway was controlling here. Since there was no evidence presented that Defendant was in possession of a gun or any other weapon during the carjacking, there was no evidence to suggest that Defendant made anything but an empty threat when he pressed the “hard and cold” object to his victim’s neck. The Fourth Circuit characterized Defendant’s threats as a mere “bluff,” providing insufficient support for a reasonable jury to conclude that Defendant possessed the intent to kill or seriously harm his victim, as required by the federal carjacking statute.

Vacated and Remanded

Accordingly, the Fourth Circuit vacated Defendant’s conviction and remanded the case to the district court for a judgment of acquittal.


By Cate Berenato

In the published, criminal case United States v. Qazah, the Fourth Circuit affirmed the United States District Court for the Western District of North Carolina’s decision to convict Kamal Zaki Qazah and his uncle, Nazzer Kamal Aquza, of conspiracy and money laundering. The Fourth Circuit remanded the district court’s sentencing decisions.

During 2010 and 2011, Qazah conspired to purchase thousands of allegedly stolen Marlboro cigarettes from undercover agents. The agents said the cigarettes had been stolen from Philip Morris trucks in Virginia and Tennessee before being sold to convenience store operators and coconspirators in North and South Carolina. Alquza entered the conspiracy to launder the proceeds.

Law enforcement agents eventually arrested Qazah and Alquza and executed search warrants in their homes. Officers mistakenly attached a list of items to be seized from Qazah’s house to the warrant for Alquza’s house, despite having prepared two separate lists specific to each defendant’s home. The two lists included similar items but one specified Qazah home and the other specified Alquza home. The magistrate judge who approved the warrants reviewed via email the lists respective of each defendant, however she signed the hard copy of Alquza’s warrant to which the list for Qazah was mistakenly attached. Additionally, the officer who conducted the search of Alquza’s home based her search on a summary of the appropriate list. Prior to trial, Alquza moved to suppress the evidence based on the warrant with the mistaken attachment, but the district court denied the motion because the mistake was a clerical error and the officers behaved in good faith.

Additionally, Qazah stated at trial that he believed the cigarettes were counterfeit instead of stolen, causing the district court to charge him with perjury. A jury found Qazah and Alquza guilty of conspiring to transport stolen cigarettes across state lines, conspiring to commit money laundering, and money laundering. Qazah was also convicted of receiving cigarettes allegedly stolen in interstate commerce. The district court sentenced Qazah to 216 and Alquza to 108 months in prison. Both defendants objected to the sentencing because it was based on the retail value rather than the wholesale value of the cigarettes, but the district court rejected the argument.

Alquza challenged the district court’s denial of his motion to suppress and the evidentiary rulings made at trial. Qazah challenged the court’s denial of his motion to sever his trial from Alquza’s. Both defendants challenged their sentences.

The District Court’s Did Not Err in Denying Alquza’s Motion to Suppress

Alquza claimed that the search warrant for his home was not particular. He also claimed that the good faith exception should not apply to the erroneous attachment of the list that related to Qazah’s home because the magistrate was not neutral and the warrant was facially deficient. The Fourth Amendment requires that searches be based on warrants that particularly describe the place to be searched and persons or things to be seized. Evidence can be excluded if a magistrate abandoned her role or if the warrant is facially deficient. The exclusionary rule is meant to deter improper police conduct and does not apply if the officers acted in good faith. Here, the Fourth Circuit stated that the officers committed a technical error and the magistrate judge decided to sign the warrant based on an email containing the appropriate attachment. The warrant was not facially deficient because it correctly identified the place to be searched and included a list of many of the items to be seized. Additionally, the officer who conducted the search based the search on a summary of the correct version of the warrant. Excluding the evidence in this case would not deter the police because their mistake was based on simple negligence rather than willful wrongdoing.

The District Court Must Reconsider the Sentencing

 Defendants stated that the district court should have based the sentences on the wholesale value of the allegedly stolen cigarettes rather than their retail value. The district court relied on U.S.S.G. § 2B1.1(b)(1) and Application Note 3(A) to determine that the sentences should be based on retail value. The offense level should have been determined based on the actual loss or intended loss, according to U.S.S.G. § 2B1.1(b)(1). Loss is determined by the loss to the victim or intended victim of the offense. Here, the victim was likely Philip Morris, the cigarette manufacturer. The state and the legitimate retailers of cigarettes could also have been victims. The Fourth Circuit vacated and remanded the sentencing decision to the district court to determine the victims and their losses.

 The District Court Did Not Err In Making Other Trial and Sentencing Rulings

Alquza contended that the district court abused its discretion when it allowed the government to present evidence of statements he made to undercover officers and evidence of false identification documents found in his home. Federal Rule of Evidence 404(b)(1) states that evidence about a defendant’s character may be admissible to prove “motive, opportunity, intent,” etc. Thus, the district court acted within its discretion.

Alquza claimed that the district court abused its discretion when it allowed the government to present evidence that Alquza sent money overseas. He claimed this was highly prejudicial and irrelevant evidence. However, Alquza’s own attorney brought this evidence in when he asked an undercover officer about it.

Qazah claimed that the district court abused its discretion when it denied his motion to sever his trial from Alquza’s. Qazah said that evidence about Alquza cast Qazah in a bad light. Federal Rule of Criminal Procedure 14 states that courts should grant severance only if there is a risk that a joint trial would compromise a trial right of a defendant or if the jury would not be able to make a reliable judgment. The Fourth Circuit stated that Qazah proved neither of those requirements.

Qazah also claimed that the district court erred during sentencing when it enhanced his sentence because he committed perjury. To apply the enhancement, the district court needed to find facts that Qazah gave false testimony concerning a material matter with intent to deceive. Here, the district court did find that Qazah knew that the cigarettes were stolen. The central issue for the jurors was whether Qazah thought he was handling counterfeit or stolen cigarettes. Qazah also “categorically denied” knowing that the cigarettes were stolen.

Finally, both defendants claimed that the sentences were unreasonable. However, based on various factors, the district court reasonably selected sentences.


The Fourth Circuit affirmed the defendants’ convictions but vacated their sentences. The Court remanded to the district court to reevaluate sentencing.


By Daniel Stratton

On September 2, 2015, the Fourth Circuit reversed the conviction of an individual convicted on several charges related to his possession of marijuana with intent to distribute, and remanded for further proceedings in a published opinion in the criminal case United States v. Ductan. The appellant, Phillip Ductan, argued that the district court violated his Sixth Amendment right to counsel by finding that he forfeited his right to counsel and requiring him to proceed pro se, and by subsequently removing him from the courtroom during the jury selection process. The Fourth Circuit, after reviewing Ductan’s argument, reversed the lower court’s decision and remanded the case back to the district court, holding that the lower court erred in finding that Ductan forfeited his right to counsel.

Ductan’s Arrest and Trial

Following a tip from a confidential informant in April 2004, the Charlotte, N.C., Police Department set up a controlled purchase of marijuana from Ductan at a restaurant in Charlotte. After Ductan showed the informant the drugs, the Charlotte Police moved in to arrest Ductan and two men accompanying him. Ductan fled the scene of the crime and in September 2004 was indicted by a federal grand jury on charges of possession of marijuana with intent to distribute, conspiracy to possess marijuana with intent to distribute, and carrying a firearm during a drug trafficking crime. He was arrested in May 2012.

At his initial court appearance, Ductan indicated to the magistrate judge that he had retained Charles Brant, an attorney, to represent him. Brant soon thereafter made a motion to withdraw from the case, explaining that Ductan was uncooperative, would not communicate, and refused to sign a discovery waiver.

At the hearing on Brant’s motion, the magistrate asked Ductan whether he intended to hire an attorney or have the court appoint one. Ductan explained that he did not want to have an attorney appointed and that he did not intend to represent himself. He also complained to the magistrate judge that it was difficult to obtain counsel while incarcerated.

The magistrate explained to Ductan that he had three options: represent himself, hire a new attorney, or ask the court to appoint an attorney for him. At this point Ductan began to make nonsensical statements (telling the judge that he was a “secured party creditor,” for example). The magistrate asked the prosecutor to explain the charges and potential penalties to Ductan, but Ductan claimed he did not understand what was being told to him and that he was “only here for the settlement of the account.” The magistrate questioned whether Ductan was under the influence of drugs or alcohol, but only received nonsense responses in return.

At this point, the magistrate told Duncan that he would not appoint a new attorney because Ductan had waived his right to an appointed attorney through his nonsense answers. The magistrate judge directed a Federal Defender’s office to appoint standby counsel for Ductan. In his order granting Brant’s motion to withdraw, the magistrate noted that Ductan had not “knowingly and intentionally waived his right to counsel” but because of his evasive responses, Ductan had “forfeited his right to counsel.”

Ductan refused to cooperate with Randy Lee, the court appointed standby counsel. About one month later, Lee moved to withdraw as Ductan’s attorney. Ductan continued to state that he did not want an appointed attorney because he was seeking private counsel, however the judge denied the motion explaining that Lee would not have to try the case because Ductan had “waived his right to appointed counsel” through his conduct.

At a calendar call, Ductan again stated that he was seeking private counsel, and stressed that he could not properly represent himself. The court explained that although Ductan had waived his right to appointed counsel, he was still free to hire an attorney.

Jury selection began the next day. Ductan told the district court that he was not prepared to move forward with the proceedings. Ductan repeatedly made nonsense statements, interrupting as the judge attempted to call the venire. After refusing the court’s instruction to stop, Ductan was held in contempt and removed from the court.

Ductan was allowed to observe the jury selection from a holding cell. Lee had no participation in the jury selection process beyond a brief bench conference; he did not strike any jurors.

Following jury selection, Ductan was allowed back into the courtroom and the judge offered to purge the contempt citation if Ductan would behave. Ductan once again stated that he did not want to represent himself and intended to seek private counsel. When Ductan again refused Lee as his counsel, the judge concluded that Ductan had chosen self-representation because the trial was ready to begin. Ductan told Lee that the judges assessment was not a fair representation of his decision.

During the trial Ductan waived his opening, cross-examined several witnesses and gave a closing argument, occasionally consulting with Lee. Ductan was convicted on all three counts of his indictment. He was sentenced to 24 months in prison for the two drug counts, followed by a 60-month term for the gun conviction.

The Fourth Circuit’s Standard of Review for Waiving Right to Counsel

Typically, a defendant’s failure to object in district court to an alleged error would bar a review on appeal absent plain error. However, in certain circumstances the Circuit can review under a de novo standard. There is a circuit split regarding the proper standard of review when a defendant does not object to a right-to-counsel waiver. Previously, the Fourth Circuit has acknowledged there is uncertainty surrounding the question, but declined to determine a specific standard. At different times, the Fourth Circuit has applied both a de novo standard and a plain error standard.

In the lone published decision applying a plain error standard, U.S. v. Bernard, the defendant sought to remove his attorney and proceed pro se. Despite a history of mental illness, the court granted that defendant’s motion because at the time of the hearing to decide, he was still represented by counsel who advocated for the defendant’s ability to represent himself. Because the counsel bore “substantial responsibility for allowing the alleged error to pass without objection” the Fourth Circuit concluded that the defendant had failed to preserve his claim of invalid waiver under a plain error review. Conversely, in cases where a defendant waives counsel while being completely unrepresented, some circuits will review de novo because it is inappropriate to expect a defendant to know fully the perils of self-representation. Such reasoning also applies when an unrepresented defendant does not raise a proper objection to a court’s finding of forfeiture.

The Fourth Circuit Addresses Tension Between Sixth Amendment’s Right to Counsel and Right to Self-Representation

Under the Sixth Amendment of the U.S. Constitution, a criminal defendant has a right to counsel before he can be convicted and punished to imprisonment. At the same time, the Sixth Amendment also protects a defendant’s right to self-representation. Because access to counsel can often be essential in asserting other rights a defendant may have, the Fourth Circuit presumes that the right to counsel is the default position. To this end, the Fourth Circuit has never held that anything less than a waiver relinquishes one’s right to be appointed counsel. In order to assert a right to self-representation, a defendant must “knowingly and intelligently” forgo the benefits of representation after being made aware of the dangers and disadvantages of self-representation.

The U.S. Supreme Court has not “established precise guidelines for determining whether a waiver is knowing and intelligent.” In the Fourth Circuit, a court must find that (1) an individual’s background, (2) appreciation of the charges against him and their potential penalties, and (3) understanding of the pros and cons of self-representation support the conclusion that a waiver to counsel is knowing and intelligent. In order to prevent a defendant from manipulating the system, the waiver must also be “clear and unequivocal.”

Did Ductan Unequivocally Waive His Right To Counsel?

As a starting point, the Fourth Circuit applied a de novo standard of review to Ductan’s case. The court explained that Ductan’s case differed from Bernard because at the time that the magistrate judge determined Ductan had forfeited his right to counsel, Brant had already successfully withdrawn from the case. Thus, Ductan was left without representation and was in a position where he could not be fully expected to understand the necessity of raising a proper objection to the lower court’s decision.

Ductan argued to the Fourth Circuit that at no point did he ever “clearly and unequivocally” elect to proceed without counsel, as required by the court’s case law. He also argued that his waiver was not knowing and intelligent because the judge did not complete the required inquiry to ensure that Ductan was fully aware of his decision’s impact.

Throughout the trial, Ductan continued to reiterate his desire to retain counsel. The Fourth Circuit noted that the magistrate judge was correct in determining that Ductan had not knowingly and intentionally waived his right to counsel, but that the magistrate was wrong in concluding that he had forfeited that right through his “frivolous arguments and answers to questions.” While acknowledging that Ductan had been uncooperative in his interactions with the trial court, the Fourth Circuit explained that it had never previously held that a defendant could forfeit their rights to counsel. Thus, Ductan could not have forfeited his right to counsel through his actions.

The Fourth Circuit also found that Ductan had never waived his right to counsel either. Because Ductan never expressed any desire to proceed pro se, the lower court should have insisted on appointed counsel against Ductan’s wishes in the absence of an unequivocal request to proceed on his own.

Finally, the Fourth Circuit explained that even if Ductan had unequivocally requested to proceed pro se, he still would not have waived his right to counsel because the lower court never finished its inquiry to ensure his decision was knowing and intelligent. Although the judge attempted to start the inquiry, Ductan’s nonsense answers prevented the court from fully exploring his understanding of the proceedings. The Fourth Circuit found that in such a situation it was a requirement that Ductan be appointed counsel “until he either effected a proper waiver or retained a lawyer.”

Ductan’s Case is Reversed and Remanded on First Claim; Court Declines to Address Second Claim

Ultimately, the court held that the lower court erred in finding that Ductan forfeited his right to counsel or made a valid waiver of that right. The court vacated Ductan’s conviction and remanded for a new trial. Judge Diaz, writing a concurring opinion, explained that while the court was right to remand on the first claim, the second claim regarding what happened during jury selection also provided an independent grounds for relief as well.

By Elizabeth DeFrance

On July 13, 2015 the Fourth Circuit issued a published opinion in the criminal case United States v. McRae.  The issue before the Court was whether the district court improperly categorized the appellant’s pro se motion as an impermissible successive habeas petition. However, the threshold issue was whether the Court was required to obtain a Certificate of Appealability (COA) before it could review the district court’s categorization of the appellant’s motion.

McRae Claims his Motion was Improperly Categorized

Madison Duane McRae (McRae) was convicted of four drug-related charges in 2005. He unsuccessfully filed a habeas petition under 28 U.S.C. § 2255 in 2008. He later filed the motion at issue in this case, titled “Motion for Relief from Judgment 60(b)(1)(3)(6).”  In this motion, McRae alleged the district court made five errors in its  § 2255 proceedings. The district court held that the motion was a successive § 2255 motion and dismissed it for lack of subject-matter jurisdiction because McRae did not first get a COA as required under 28 U.S.C. § 2244(b)(3). The district court declined to issue a COA. McRae appealed and claims that the district court erred by not treating his motion as a mixed 60(b)/ § 2255. He also argued that the circuit court could review this issue without first obtaining a COA.

COA is Not Required for a “True 60(b)”

A 60(b) motion that challenges a defect in a federal court’s habeas proceedings rather than the court’s conclusion based on the merits is a “true 60(b) motion” and does not require a COA.

The Court Follows Gonzales and Harbison

The Court looked to the Supreme Court’s decision in Gonzalez v. Crosby, in which it held that a 60(b) motion must be treated distinctly from a successive habeas motion because of the “unquestionably valid role” they play in habeas actions. The Court also followed reasoning from the Supreme Court decision in Harbison v. Bell that only a 60(b) motion “with a sufficient nexus to the merits of a habeas petition” should require a COA. Thus, the Court determined that denial of a 60(b) requires a COA because the district court necessarily considers the merits of the underlying habeas claim before denying the motion. However, dismissal of a 60(b) motion on jurisdictional grounds does not require a COA because it is far removed from a consideration of the merits of the habeas claim.

COA was Not Required and the 60(b) Claim Must be Considered on the Merits

The Court held that it did not need a COA before addressing whether the district court erred in categorizing McRae’s motion as a successive habeas petition.

The Court further held that when a motion contains both a 60(b) and a successive habeas claim, the district court must allow the petitioner the option to delete the improper claim and have the 60(b) claim decided on the merits. Because the district court was in the best position to judge the merits of McRae’s 60(b) claim, the Court reversed and remanded for further proceedings.

Circuit Judge Diana Gribbon Motz dissented because the majority’s holding departed from precedent.



By Eric Benedict

On October 27th, 2015, the Fourth Circuit issued its published opinion in the civil case, Griffin v. Baltimore Police Dept. In Griffin, the Fourth Circuit affirmed the District Court’s determination that Griffin’s § 1983 claim (42 U.S. Code § 1983) was barred by the standards set forth in Heck v. Humphrey. The Heck rule prohibits § 1983 claims that would “necessarily imply[y] the invalidity of a prior conviction.” The Court explained that because, if successful, Griffin’s “Brady Claim” would imply that his conviction was invalid, and was therefore barred by Heck.

Griffin’s Conviction and Pursuit of Post-Conviction Relief

In 1982, a Baltimore jury convicted Wendell Griffin of murder and a related weapons charge. Griffin was then sentenced to life in prison. The state appellate court affirmed the conviction and Maryland’s highest state court declined to hear his appeal. Fifteen years after his conviction, Griffin fined a petition for habeas corpus in the United States District Court for the District of Maryland. That petition was ultimately denied and the Fourth Circuit declined to issue a certificate of appealability. Finally, Griffin filed a petition seeking DNA testing on pieces of evidence from the police case file. As part of the proceedings that followed, Griffin apparently discovered information that suggested the police failed to hand over exculpatory evidence to the defense during trial. Griffin was ultimately successful in reducing his sentence from a life sentence to time served.

Griffin Files Suit Against the Baltimore City Police Department

After his release, Griffin filed a § 1983 claim against the Police Department. A § 1983 claim allows a plaintiff to seek damages against an actor who violates the plaintiff’s federal rights while acting under color of state law. Griffin claimed that the Baltimore Police Department withheld evidence that would have exculpated him at trial (a “Brady Claim”).

Heck’s Judgment Consistency Precludes Griffin’s Claim

The Fourth Circuit relied heavily on precedent to prevent Griffin’s claim from moving forward. Specifically, the Court cited the consistency standards set for in Heck v. Humphrey. In Heck, a 1994 United States Supreme Court case, the Supreme Court explained that allowing a plaintiff to proceed on a § 1983 claim that would imply the wrongfulness of a still-valid conviction would lead to inconsistent results. On one hand, there would be a standing conviction, not overturned at the state or federal level, while on the other there would be a civil judgment calling that conviction into question. The Fourth Circuit reasoned that any successful “Brady Claim” would undermine Griffin’s prior conviction because it would call into question the validity of the verdict.

The Heck Court expressly allowed claims like Griffin’s to move forward only when the conviction had already been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal…or called into question by a federal court’s issuance of a writ of habeas corpus.” Griffin argued that because he was no longer incarcerated, the habeas corpus path was no longer accessible to him, and therefore, he should be allowed to proceed. The Fourth Circuit explained that such an exception should only be available where a plaintiff cannot seek habeas relief as a practical matter (i.e. a short sentence). The Court noted that Griffin had ample time to seek habeas relief, and indeed did at one point, although his petition was denied. Additionally, Griffin had at least sixteen months after learning about the alleged Brady claim to seek habeas relief, but did not. In sum, the Court concluded that the suit was barred by the limits of Heck, and that Griffin did not fall into any exception to the rule.

The Court Recognizes Federalism Concerns in Post-Conviction Relief

Citing the unique relationship between state and federal courts, the Fourth Circuit acknowledged the delicate balance between a state court’s interest in a given conviction and a federal court’s use of habeas corpus. The Fourth Circuit reasoned that limitations on habeas relief are especially warranted when a state provides pathways for post-conviction relief. In Maryland, the Fourth Circuit identified four: a petition for error coram nobis, a petition for writ of actual innocence on the basis of newly discovered evidence, a pardon from the Governor, and Maryland’s standard direct and collateral review procedures. The Court explained that should Griffin’s petition be invalidated through a method still available to him, the Heck rule would no longer apply, and Griffin could pursue a § 1983 claim.

The Fourth Circuit Affirms

The Fourth Circuit affirmed the District Court’s dismissal of Griffin’s claim. Both the majority opinion and the lone concurrence were careful to articulate that their ruling only discusses the procedural aspects of the claim and not the merits. Should Griffin’s conviction become invalidated, he may be able to pursue his claim.