Wake Forest Law Review

By Mickey Herman

On Thursday, January 11, 2017, the Fourth Circuit issued a published opinion in United States v. Tate, a criminal case. Defendant-appellant, Brandon Tate, appealed his sentence, arguing that the government failed to comply with the plea agreement. After reviewing Tate’s claim for plain error, the Fourth Circuit affirmed the district court’s sentencing decision.

Facts & Procedural History

In a written plea agreement, Tate agreed to plead guilty to several drug-related offenses in exchange for the government “seek[ing] a sentence at the lowest end of the . . . ‘applicable guideline range.’” Tate also waived his right to appeal his conviction and sentence with two exceptions, neither of which are relevant on appeal. After establishing that Tate was competent to plead guilty and understood the term of his plea agreement, a magistrate judge prepared a presentence report (“PSR”) that established a guideline range of 57 to 71 months’ imprisonment. Objecting to the assignment of three criminal history points for his prior convictions, Tate argued that the range actually should have been 46 to 57 months’ imprisonment. At sentencing, the district court overruled Tate’s objection and adopted the PSR’s guideline range of 57 to 71 months. Upon the government’s recommendation, the district court sentenced Tate to 57 months’ imprisonment. Tate appealed, arguing that the government breached the plea agreement by not recommending a sentence of 46 months, the lowest end of his proposed range.

Waiver 

The Court first considered whether Tate’s appeal waiver barred this claim. Noting that appeal waivers are generally valid, the Court nonetheless emphasized that “[a] defendant’s waiver of appellate rights cannot foreclose an argument that the government breached its obligations under the plea agreement.” United States v. Dawson, 587 F.3d 640, 644 n.4 (4th Cir. 2006). Thus, the Court determined, Tate’s claim that the government breached the plea agreement is not barred by the waiver and must be considered.

Breach of Plea Agreement

The Fourth Circuit next turned to the issue presented: whether the government breached the plea agreement by recommending a sentence at the lowest end of the guideline range adopted by the district court. Noting that Tate did not raise the issue below, the Court reviewed his claim for plain error. Fed. R. Crim. P. 52(b). In framing its analysis, the Fourth Circuit asserted that plea agreements are contracts and must be analyzed as such. Thus, obligations created by a plea agreement must be determined in light of the document’s plain language, United States v. Jordan, 509 F.3d 191, 195 (4th Circ. 2007), and any ambiguities must be construed against the government.

The Court began its analysis by “assum[ing] arguendo that the lower guideline range proposed by Tate of 46 to 57 months was the correct guideline range.” Even in light of that assumption, the Fourth Circuit concluded that “‘applicable guideline range’ means the guideline range found by the district court, and that, therefore, the government’s sentencing recommendation complied with the plea agreement.”

The Court offered three justifications for so holding. First, because only the district court is tasked with determining the “applicable guideline range,” the “applicable guideline range” must be that which is adopted by the district court. Second, where a plea agreement merely references the sentencing guidelines but does not expressly condition the plea agreement on a correct sentence under the guidelines, no such condition exists. Third, Tate’s failure to demand that his proposed range be included in the plea agreement suggests that both parties anticipated the district court to determine the range.

Conclusion

Suggesting that Tate’s theory on appeal was nothing more than an attempt to circumvent his waiver of appeal by “covert[ing] [the] claim of sentencing error into a claim of breach by the government,” the Fourth Circuit affirmed, holding that the district court complied with the plea agreement by recommending a sentence on the lowest end of the guideline range adopted by the district court.

By Blake Stafford

On July 31, 2015, the Fourth Circuit issued its published opinion in the criminal case United States v. Surratt.  In this case, Raymond Surratt filed a second petition for writ of habeas corpus under 28 U.S.C. § 2241 to reduce his life sentence for his conviction of conspiracy to distribute cocaine.  As a federal prisoner, Surratt could not challenge his sentence under § 2241 unless the challenge fell within the scope of 28 U.S.C. § 2255(e)—the “savings clause”; otherwise, the district court was deprived of jurisdiction.  The district court concluded that his petition did not meet the “savings clause” requirements under § 2255(e) and thus denied his petition.  The Fourth Circuit affirmed, holding that Surratt’s § 2241 petition did not fall within the scope of § 2255(e); thus, the district court appropriately determined that it lacked jurisdiction to consider the petition.

Facts & Procedural Background

In 2005, Surratt was sentenced to life imprisonment after pleading guilty to conspiracy to distribute cocaine.  Prior to this conviction, he had been convicted four times for felony possession of cocaine.  The Government sought a sentencing enhancement given Surratt’s prior convictions under 21 U.S.C. § 841(b)(1)(A), which provided a mandatory term of life imprisonment without release if the defendant had two or more prior convictions that constituted “felony drug offenses.”  At the time of his sentencing, the Fourth Circuit precedent on this sentencing enhancement scheme was set forth in United States v. Harp, in which the Fourth Circuit held that a North Carolina drug conviction qualified as a “felony drug offense” if “the maximum aggravated sentence that the state court could have imposed for that crime upon the defendant with the worst possible criminal history exceeded one year.”  Under Harp, Surratt’s prior convictions constituted felony drug offenses, and he thus faced a mandatory life sentence.  Surratt’s conviction and sentence were affirmed on appeal, and his motion to vacate his conviction under § 2255, based on ineffective counsel, was denied.

Several years later, the Fourth Circuit decided United States v. Simmons, which overruled Harp.  Had Surratt been sentenced after Simmons, he would have faced a lower mandatory minimum sentence than the mandatory life term that he actually received.  In light of this ruling, Surratt filed a successive § 2255 motion to the Fourth Circuit as well as a § 2241 petition for a writ of habeas corpus to the district court, both premised on Simmons-based relief.  The Fourth Circuit denied his successive § 2255 motion, as it fell outside the statutorily enumerated exceptions that permit that type of motion under § 2255(h).  Because he was a federal prisoner, Surratt’s § 2241 petition in the district court had to satisfy § 2255(e)—also called the “savings clause”—in order for the district court to have jurisdiction to consider the § 2241 petition.  The district court concluded that § 2255(e) did not, in this case, confer jurisdiction to consider Surratt’s claim in a § 2241 petition, so it denied the petition.  Surratt appealed.

Statutory Landscape

In the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress circumscribed the ability of federal prisoners to request post-conviction relief.  Normally, § 2255 provides the ordinary means for a federal prisoner to challenge his conviction or sentence.  But, in AEDPA, Congress limited the jurisdiction of federal courts to hear second or successive requests under § 2255.  Specifically, under § 2255(h), courts may hear second or successive motions only if they pertain to (1) newly discovered evidence that clearly and convincingly establishes that no reasonable factfinder would have found the movant guilty of the offense, or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

If a federal prisoner cannot meet these two requirements under § 2255(h), he may file a traditional petition for writ of habeas corpus under § 2241 by way of the § 2255(e) savings clause.  However, under § 2255(e), a prisoner may file a § 2241 habeas petition only if the collateral relief typically available under § 2255 is “inadequate or ineffective to test the legality of his detention.”  If a prisoner brings a § 2241 petition that does not fall within the scope of this savings clause, then the district court must dismiss for lack of jurisdiction.

Court’s Application: Savings Clause Not Applicable

The Court began by noting that § 2255 was deemed inadequate or ineffective in only one prior instance—In re Jones.  In Jones, the court opened a narrow gateway to § 2241 relief for certain prisoners found actually innocent of their offenses of conviction, allowing relief only where the acts for which the defendant was convicted are not a crime.  Thus, the Court has since focused on this aspect of Jones—actual innocence of a criminal act—when characterizing the decision.  Here, Surratt is not innocent of anything, because Simmons did not decriminalize anything.  Thus, the Court held that he was just as guilty today as he was in 2005, and Jones did not apply.

Next, the Court evaluated the text of § 2255(e)—”inadequate or ineffective to test the legality of [Surratt’s] detention”—to determine whether circumstances outside of the Jones “innocence” test permit § 2241 relief.  The Court identified four basic characteristics of the text of § 2255(e) that ultimately left Surratt with no remedy:

  • First, the Court found that the word “test” indicated that the clause is concerned with process, not with substance; thus, Surratt had the opportunity to “test” the legality of his detention in his first § 2255 motion.  While Simmons had not been decided at the time Surratt filed his first § 2255 motion, courts do not permit petitioners special favors because the petitioners misjudged their claims as futile and chose not to present them in the first instance.  Thus, what matters is the ability to make the request—not the ability to win it—and Surratt had the ability to make the claim in the first motion.
  • Second, the Court found that the phrase “inadequacy and ineffectiveness” indicates that § 2255(e) preserves only the chance to request relief, not the ultimate and absolute right to obtain it.  Thus, the chance to argue a claim is the relevant criterion for adequacy and effectiveness, not any particular disposition of the claim.  Here, Surratt never suggested that the § 2255(e) mechanism denied him a chance to make his present argument.
  • Third, the Court found that the savings clause tests the “legality” of the relevant detention.  Courts generally have not recognized an “illegal” detention—one that would trigger the savings clause—where the defendant challenges a sentence within the correct statutory maximum.  Here, Surratt never received a sentence above the statutory maximum; while a life term is no longer mandatory, it is still the statutory maximum even after Simmons.
  • Fourth, the clause’s reference to “detention” speaks to physical restraint of a person’s liberty by the executive branch.  Thus, a § 2241 attack on “detention” through § 2255(e) should entail a challenge to (1) the right and authority of the executive to keep the individual in custody, or (2) the manner in which the executive executes the detention.  Here, Surratt’s petition does not attack any detention by the executive branch.

In addition to these four textual arguments, the Court noted that this narrower reading of the savings clause preserves one of the most important purposes of AEDPA sought to serve: finality.

Finally, the Court rejected potential constitutional issues brought by Surratt, finding that their narrow interpretation did not violate the Suspension Clause, Due Process Clause, Equal Protection Clause, or separation-of-powers principles.

District Court Affirmed

In sum, the Court found that the text and purposes of § 2255(e) indicated that Surratt’s § 2241 claim was not the type covered by the savings clause.  Thus, the Fourth Circuit affirmed the district court’s determination that it lacked jurisdiction over his petition.

Dissent

In a passionate dissent, Judge Gregory noted that Surratt will die in prison only because the district court thought that this sentence was required to do so pursuant to a mandatory minimum.  Given the complete deprivation of liberty, this sentence constitutes an extraordinary miscarriage of justice of a constitutional magnitude, which should be sufficient to invoke the savings clause.

By Katharine Yale

Yesterday, in the unpublished criminal case United States v. Hamilton, the Fourth Circuit reviewed the sentences of the defendant, Thomas Hamilton, and affirmed the district court’s judgment. A jury found Hamilton guilty of manufacturing marijuana and of possessing firearms and ammunition after having been convicted of a felony. The court sentenced him accordingly. On review, Hamilton argued that the court below erred in allowing the testimony of a state trooper and by applying the four-level enhancement under the United States Sentencing Guidelines (the “Guidelines”).

The Court Uses an Abuse of Discretion Standard in Reviewing a District Court’s Decision to Admit Evidence

In reviewing a district court’s decision to admit evidence, the Fourth Circuit uses an abuse of discretion standard. Evidence of prior bad acts, under Rule 404(b), “may be admitted as proof of ‘motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. . . ’” However, such evidence cannot be admitted to prove a person’s character. Further, to be admissible under Rule 404(b), the evidence must be relevant to an issue other than character, necessary, and reliable. If the probative value of the evidence is “substantially outweighed by its unfair prejudice to the defendant,” the evidence should be excluded.

The District Court Did Not Err in Admitting Trooper Richardson’s Testimony

Here, Trooper Richardson testified that in 2005 he had seen Hamilton in possession of a handgun. The Fourth Circuit found that the testimony met all of the criteria for admissibility, that the district court was careful in its ruling, and the use of limiting jury instructions eliminated the risk of unfair prejudice.

The Court Uses a Clear Error Standard in Reviewing Guidelines Calculations and Reviews the Court’s Legal Conclusions De Novo

The Fourth Circuit reviews the district court’s Guidelines calculations using a clear error standard for findings of fact and reviews its legal conclusions de novo. Section 2k2.1(b)(6)(B) of the Guidelines allows for a four-level enhancement to the sentence if a defendant “used or possessed any firearm or ammunition in connection with another felony or offense.” In general, a firearm or ammunition is possessed “in connection with” another felony offense “if the firearm or ammunition facilitated, or has the potential of facilitating, another felony offense.”

Under the Guidelines, there is a presumption for drug trafficking offenses. A firearm is presumed to have the potential of facilitating another felony offense if it “is found in close proximity to drugs, drug-manufacturing materials, or drug-paraphernalia.”

The District Court Did Not Err in Applying the Four-Level Enhancement to Hamilton’s Sentence

Here, at least one of the firearms was found in close proximity to drug paraphernalia. Additionally, the presence of the firearms was not an accident. The firearms were “‘present for protection [and] to embolden’ Hamilton.” Thus, the district court did not err in applying the four-level enhancement.

The Fourth Circuit Affirmed the District Court’s Judgment

By Diana C. Castro

Today, in the criminal case United States v. Santos Rios-Santos, the Fourth Circuit affirmed, in an unpublished opinion, the decision of the District Court for the Eastern District of North Carolina. The District Court denied the defendant’s request for a below-Guidelines sentence.

Defendant Argues for an Individualized Reason

Santos Rios-Santos contends that the District Court erred in failing to adequately provide an individualized reason explaining why it denied his request for a sentence below the advisory Guidelines.

Moreover, Santos Rios-Santos argues that the fact of his prior felony conviction should have been presented to a jury and proven beyond a reasonable doubt.

Defendant Pled Guilty to Illegal Reentry Into the United States Following a Conviction

Santos Rios-Santos pled guilty to illegal reentry into the United Stated after having been convicted of an aggravated felony in violation of 8 U.S.C. § 1236(b) (2012).   At his sentencing hearing before the District Court, the defendant’s attorney requested a sentence below the advisory Guidelines range of 24–30 months’ imprisonment. The District Court rejected the request and instead sentenced Santos Rios-Santos to 28 months. 

The Fourth Circuit Applies “Reasonableness” Standard

 The Fourth Circuit reviewed the sentence for procedural and substantive reasonableness. Following that determination, the court considered whether the District Court (1) applied the 18 U.S.C. § 3553(a) (2012) factors, (2) analyzed any arguments presented by the parties, and (3) sufficiently explained the selected sentence.

The District Court’s Explanation Was Sufficient Under Gall and Carter

 Looking for abuse of discretion, the Fourth Circuit reviewed both the procedural and substantive reasonableness of the defendant’s sentence. Gall v. United States, 552 U.S. 38, 46 (2007).

Having determined the District Court properly calculated the sentence under the Guidelines, the Fourth Circuit considered whether the District Court considered the 18 U.S.C. § 3553(a) (2012) factors, analyzed any of the parties’ arguments, and sufficiently explained the selected sentence. See Rita v. United States, 551 U.S. 338, 346–47; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Here, the court held that the District Court’s explanation was sufficient to show that it conducted the analysis necessary under Gall and Carter.

Finally, the Fourth Circuit reviewed the substantive reasonableness of the sentence “taking into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The court applied a presumption of correctness because the sentence was within the properly-calculated Guidelines range. Rita, 551 U.S. at 346–47.

Regarding the defendant’s argument that his prior conviction should have been presented to a jury and proven beyond a reasonable doubt, the Fourth Circuit points out that Santos Rios-Santos conceded that his argument is foreclosed by Almendarez-Torres v. United States, which held that a statute permitting an increased sentence based on a prior conviction is a penalty provision, not the element of an offense. 523 U.S. 224, 228–35. 239–47 (1998).

Court of Appeals for the Fourth Circuit Affirmed

Applying the reasonableness standard and the analysis under Gall and Carter, the Fourth Circuit affirmed the District Court’s selected sentence.

 

 

 

By: Michael Klotz

In United States v. Groves, the Fourth Circuit affirmed that a district court has the authority to vacate a conviction without altering a defendant’s criminal sentence or ordering a new sentencing hearing, even when the court fails to acknowledge its authority to require a new sentencing hearing in its order.

Facts and Procedural History

Mr. Groves was previously convicted of operating a continuing criminal enterprise (21 U.S.C. § 838), using a firearm during a drug trafficking crime (18 U.S.C. § 924(c)(1)), and trading food stamps for cocaine base (7 U.S.C. § 2024(b)). As a result of these convictions he was sentenced to life in prison plus sixty months. In 2007, the Supreme Court held in Watson v. United States, 552 U.S. 74 (2007) that a person does not “use” a firearm under 18 U.S.C. § 924(c)(1) when he receives the gun in exchange for drugs. As a result, Mr. Groves filed a petition to set aside his conviction under 18 U.S.C. § 924(c)(1). The district court reviewed this charge under Watson, and ultimately vacated this conviction. Despite this change in the judgment, the district court imposed the same sentence of life in prison. On appeal, Mr. Groves contended that the district court acted erroneously by leaving intact a sentence that was imposed on the basis of a now unconstitutional mandatory sentencing scheme, and by failing to order a new sentencing hearing or to acknowledge its authority to do so.

Analysis

In United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997), the Fourth Circuit made clear that a district court has “broad and flexible power to fashion an appropriate remedy in granting relief” including issuing a “new” sentence that is “the same as the original sentence.” Because Mr. Groves’s sentence under § 924(c)(1) ran concurrently with his other charges, the district court was permitted to vacate his conviction without altering the sentence. Further, the court rejected his contention that the court did not recognize it had the authority to order a new sentencing hearing. Finally, the Fourth Circuit held that there was no evidence that the failure to alter the sentence or to order a new sentencing hearing was reversible error. Although an appellate court must reverse a criminal sentence if it is not clear beyond a reasonable doubt that the court would have imposed the same sentence in the absence of a constitutional error, in this case there were “no non-speculative grounds” for concluding that under the discretionary sentencing scheme the court would have imposed a different sentence.