Wake Forest Law Review

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By Daniel Stratton

Today, the Fourth Circuit affirmed the sentence of an individual convicted of conspiracy and possession with intent to distribute cocaine in a published opinion in the criminal case United States v. McCoy. The appellant, Dilade McCoy, challenged the district court’s decision to impose a 188-month sentence, on the grounds that the sentence was substantively unreasonable. McCoy argued that the district court abused its discretion by imposing a sentence that was above the initial sentencing guidelines range of 135 to 168 months’ imprisonment. The Fourth Circuit, after reviewing McCoy’s arguments, affirmed his sentence, explaining that the upward departure to 188 months was not unreasonable and that the district court had not abused its discretion by departing from the initial Sentencing Guidelines.

McCoy’s Conviction and Sentencing

In 2014, a federal grand jury in the Eastern District of Virginia indicted McCoy on several charges, including possession with intent to distribute and conspiracy to distribute and possess 500 grams or more of cocaine. During the trial, a co-defendant testified that he had purchased cocaine from McCoy in early summer 2013, late summer 2013, and again in November 2013, in amounts ranging from one to three kilograms. The late summer sale was returned to McCoy because of the drug’s poor quality. The jury returned a guilty verdict against McCoy on the drug charges for an amount between five hundred grams and five kilograms.

Following his conviction, the probation office prepared McCoy’s Presentence Investigation Report (“PSR”), which calculated a sentencing range of 135 to 168 months’ imprisonment, pursuant the U.S. Sentencing Commission’s Sentencing Guidelines. The PSR counted all three of the cocaine sales in its analysis and determined the amount of cocaine attributed to McCoy to be seven kilograms, which was above the range found by the jury. The PSR also included a previous 2005 conviction for criminal possession of cocaine with intent to distribute in its analysis.

McCoy argued that the amount of cocaine attributed to him in the report was inaccurate, and that he should be held accountable only for the amount the jury found. This, McCoy argued, would lower his sentencing range under the Sentencing Guidelines to 108 to 120 months.

The government, by contrast, moved for an upward departure of the guidelines, pointing to McCoy’s previous criminal past. McCoy, at the ages of 15 and 17, had committed three felonies, including two armed robberies and assault with intent to cause serious injury with a weapon, in addition to the 2005 criminal possession charge. The PSR did not use the three felonies McCoy committed as a minor, because they had occurred more than 15 years earlier. At sentencing, the government requested that McCoy’s criminal history, including his juvenile felonies, should elevate McCoy to a sentencing range between 168 and 210 months. McCoy objected.

The district court rejected McCoy’s objection to how much cocaine had been attributed to him, and found that McCoy’s criminal history supported an upward departure in his sentencing range. The district court ultimately determined McCoy’s range to be 188 to 235 months’ imprisonment, and sentenced McCoy to serve 188 months. McCoy appealed to the Fourth Circuit on the grounds that his sentence was substantively unreasonable.

How Does the Fourth Circuit Determine When a Sentence is Reasonable?

When reviewing a sentence for its reasonableness, the Fourth Circuit deferentially applies an abuse-of-discretion standard. This standard means that the Circuit will defer to the trial court’s judgment and affirm a reasonable sentence, “even if the sentence would not have been” that court’s choice. When determining if a sentence is reasonable, the Fourth Circuit looks for a “more significant justification than a minor one” where there is a major departure from the advisory guidelines.

The Sentencing Guidelines allow for an upward departure when there is reliable information that the defendant’s criminal history is substantially more serious than the Guideline’s categories may indicate. Prior convictions that are too old to be counted in the Sentencing Guidelines’ calculations may still be considered by a court when determining an appropriate sentence.

Additionally, while district courts are not bound to impose a sentence within a sentence recommended by the prosecution, the prosecution’s recommendation serves an important function in helping avoid unwarranted sentencing disparities.

In the event that there is of a retroactive amendment made to the Sentencing Guidelines, the new amendment does not make a prior sentence unreasonable. Rather, a defendant may make a motion under 18 U.S.C. § 3582(c)(2) to allow the district court to “assess whether and to what extent” the defendant’s sentence is impacted by the new change.

McCoy made four arguments to the Fourth Circuit as to why his sentence was substantively unreasonable, each of which the court determined failed.

McCoy’s Arguments Fail to Persuade Fourth Circuit

First, McCoy argued that the court improperly considered his juvenile felonies. The district court found that the criminal history calculation of McCoy’s PSR was not reflective of McCoy’s actual history and his likelihood for recidivism. While the district court acknowledged the remoteness of his juvenile felonies, it believed the fact that McCoy committed another felony within five years of his initial release justified the inclusion of the juvenile felonies.

McCoy, relying on a recent Fourth Circuit decision in United States v. Howard, argued that the upward departure was unreasonable. In Howard, the district court had imposed a life sentence instead of the suggested 121-month maximum suggested by the Sentencing Guidelines, and the Fourth Circuit held that to be unreasonable. Here, the court explained that Howard was distinguishable because the actual sentence was only twenty months more than the top of the initially suggested range. Because the departure “pale[d] in comparison to” the unreasonable departure in Howard, the Fourth Circuit held that the district court did not abuse its discretion by considering the juvenile felonies.

Second, McCoy argued that his sentence was unreasonable because the district court had put his criminal history in a higher category than the prosecution had recommended. The Court found this argument to be unpersuasive; while the district court had imposed a higher category for McCoy’s criminal history than suggested, the overall 188 month sentence it imposed was lower than the 192 month one sought by the prosecution.

Third, McCoy argued that his sentence overstated the seriousness of his crime. He argued that the November 2013 sell of three kilograms of cocaine merely replaced the bad order that had been purchased in the summer of 2013. Because of this, McCoy argued that his sentence should have been subject to a departure downward, to reflect a smaller amount of cocaine that was actually trafficked. The Fourth Circuit pointed to the fact that McCoy himself conceded that all seven grams of cocaine could be considered in the “technical determination” of how much he had trafficked. The court also noted that the trial record did not support McCoy’s argument.

Fourth, McCoy argued that because a new retroactive amendment to the Sentencing Guidelines, which lowered the base offense levels for drug-related crimes, went into effect soon after he was sentenced, his sentence was substantively unreasonable. The Fourth Circuit explained that the amendment did not change the fact that the district court had correctly applied the Sentencing Guidelines at the time of the sentencing. If McCoy wanted the new amendment applied to his sentence, the Fourth Circuit explained, he would have to submit a motion to the district court, which would assess whether the amendment affected McCoy’s sentence. In a footnote in its opinion, the Fourth Circuit explicitly made clear that its determination here was “rendered without prejudice to McCoy’s right to pursue” relief under the new amendment in the district court.

McCoy’s Sentence is Affirmed

Because the district court did not abuse its discretion in departing from the Sentencing Guidelines to impose a higher sentence on McCoy, the Fourth Circuit affirmed the 188-month sentence.

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By Elissa Hachmeister

Today, March 23, 2015, in the criminal case United States v. John A. Boyles, the Fourth Circuit affirmed in an unpublished per curiam opinion the district court’s judgment applying a two-level enhancement pursuant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1).

Enhancement for Drug Offense with Possession of a Dangerous Weapon

John A. Boyles pled guilty to aiding and abetting the distribution of crack cocaine. The district court imposed a 97-month sentence and a 3-year term of supervised release. The only issue on appeal was whether the district court erred in enhancing Boyles’ offense level under USSG § 2D1.1(b)(1). Application of the Guidelines enhancement is reviewed for clear error.

Under the Guidelines, a two-level increase in a defendant’s base offense level is appropriate when a drug offense involves possession of a dangerous weapon, including a firearm. USSG § 2D1.1(b)(1). The weapon at issue must be “possessed in connection with drug activity that was part of the same course of conduct or common scheme” as the drug offense that the defendant was convicted of. United States v. Manigan.

The Government need not prove that the defendant actually possessed the gun during any specific act. Instead, it is sufficient for the Government to show constructive possession of the firearm, which it may do through circumstantial evidence. Once the Government has offered proof of constructive possession, the burden shifts to the defendant to show that any connection between his possession of a firearm and his drug offense is “clearly improbable.” United States v. Harris.

Facts Support the Enhancement

The Fourth Circuit looked to the facts set forth in the presentence report, which Boyles did not contest, and concluded that the facts support the application of the enhancement. It was enough for the Fourth Circuit that the firearm was found in the bedroom of Boyles’ home, the same home where he had sold crack cocaine to a confidential informant and where drugs and drug paraphernalia were found. Under the circumstances, the district court’s application of the enhancement was not clear error.

The Fourth Circuit Affirmed

By: Diana C. Castro

Today, in United States v. Ornis Leger, the Fourth Circuit affirmed the decision of the District Court for the Western District of North Carolina convicting the defendant of two counts of drug-related offenses.

Defendant Contends Insufficient Evidence and Improper Denial of Safety Valve.

On appeal, the defendant contended two issues: (1) there was insufficient evidence to convict him of two counts of possession of marijuana; and (2) the District Court improperly denied him the possibility of less time in prison than the mandatory minimum required.

Defendant Was Convicted of Conspiracy to Possess With Intent to Distribute More Than 100 Kilograms of Marijuana and Possession With Intent to Distribute Marijuana.

Ornis Leger appealed from the criminal judgment imposed after a jury found him guilty of conspiracy to possess with intent to distribute more than 100 kilograms of marijuana and possession with intent to distribute marijuana.

Leger was stopped by DEA agents with approximately 750 pounds of marijuana in his van, after unloading the shipment with the aid of his co-conspirators. Leger consistently stated that he thought the shipment was furniture.

A Jury’s Verdict Must Be Sustained When There is Enough Evidence in the Record to Support the Conviction.

Under United States v. Jaensch, 665 F.3d, 83, 93 (4th Cir. 2011), an appellate court must sustain a jury verdict when, viewed in the light most favorable to the government, there is substantial evidence in the record to support the conviction.  Evidence is substantial when a reasonable finder of fact could accept it as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.

The Fourth Circuit’s review of the record indicated substantial evidence to support Leger’s convictions.

To Benefit From the Safety Valve, a Defendant Must Establish Five Statutory Requirements.

Safety valves are laws that allow courts to sentence an offender to less time in prison than the mandatory minimum requirement, if the person or the offense meets certain special requirements.  In determining whether the District Court improperly denied Leger the benefit of the safety valve, the Fourth Circuit applied a clearly erroneous standard of review.

Under United States v. Henry, 673 F.3d 285, 292-95 (4th Cir. 2012), the U.S. Sentencing Guidelines Manual § 5C1.2(a) (2012), and  18 U.S.C. § 3553(f) (2012), a defendant seeking the relief of a safety valve must establish five requirements: “(1) the defendant does not have more than one criminal history point; (2) the defendant did not use violence or possess a firearm in connection with the offense; (3) the offense did not result in death or serious bodily injury; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense; and (5) no later than the time of sentencing, the defendant truthfully provided the government with all evidence and information the defendant had concerning the offense or offenses comprising the same course of conduct or a common scheme or plan.”

Leger Did Not Overcome the Burden of Showing that He Was Truthful and Complete in His Disclosure.

Leger indisputably met the first four requirements necessary to seek the benefit of the safety valve.  To satisfy the fifth requirement, Leger must have truthfully disclosed all information he had “about the offense of conviction and any other crimes that constitute relevant conduct.”  United States v. Aidoo, 670 F.3d 600, 610 (4th Cir.), cert. denied, 133 S. Ct. 627 (2012).

The Fourth Circuit concluded that the District Court did not clearly err in denying Leger the benefit of the safety valve.  Although Leger claimed he thought he was unloading furniture and not marijuana, neither the jury nor the sentencing judge found him credible.  The Fourth Circuit emphasized that even though Leger was consistent in stating that he believed the shipment was furniture, consistency is not the sole indicator of truthfulness.

 Court of Appeals for the Fourth Circuit Affirmed.

The Fourth Circuit affirmed, holding there was substantial evidence to support Leger’s convictions and the District Court did not clearly err in denying Leger the benefit of the safety valve.

By Chad M. Zimlich

Today, in the case of United States v. Mitchell, the Fourth Circuit ruled on the reasonableness of a sentence handed down by the Eastern District of North Carolina. Mr. Jeromey Keith Mitchell pleaded guilty to “conspiracy to distribute and to possess with intent to distribute 280 grams or more of cocaine base, six counts of distributing cocaine base, and one count of possession with intent to distribute cocaine base.” The court sentenced him to 22 years in prison.

Mitchell filed an appeal, arguing that the sentence was “substantively unreasonable.”

In reviewing whether a criminal sentence is reasonable or not, the court uses an “abuse of discretion” standard. First the court must examine any glaring procedural errors, and second the court examines the “totality of the circumstances” viewed in the light most favorable to the district court and its decision.

In examining the district court’s calculation of the defendant’s Guidelines range, the Fourth Circuit determined that the actual Guidelines range for Mitchell was 292 to 365 months. The district court’s sentence of 22 years, or 264 months, was 28 months below the low-end of the spectrum, and well within their authority in the realm of reasonableness.

Furthermore, the Fourth Circuit felt the district court’s use of the factors under 18 U.S.C. § 3553(a) in assessing an appropriate sentence based on the “totality of the circumstances” was founded on a thorough, individualized assessment of Mitchell’s case. The district court did not abuse its discretion, and the Fourth Circuit therefore affirmed Mitchell’s sentence.