Wake Forest Law Review

By: Kristina Wilson

On Monday, January 30, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Dozier. The Fourth Circuit affirmed the Southern District Court of West Virginia’s designation of the defendant as a career offender and also held that the defendant’s prior state conviction under West Virginia law constituted a controlled substance offense under § 4B1.2 of the Sentencing Guidelines.

Facts and Procedural History

In April of 2015, the defendant pled guilty to violating 21 U.S.C. § 841(a)(1) by knowingly distributing a set quantity of crack cocaine. The court used the modified categorical approach to hold that the defendant’s two prior state convictions were “controlled substance offenses” under § 4B1.2 of the Sentencing Guidelines. The court consequently determined that the defendant should receive career offender status. On appeal, the defendant argued that the second of his two prior state convictions did not qualify as a controlled substance offense and that consequently, he should not be termed a career offender.

The District Court Should Not Have Used the Modified Categorical Approach

When determining whether to apply a Guideline sentencing enhancement, courts use a categorical inquiry to determine whether a defendant was convicted of a crime that qualifies as a predicate offense. However, when a statute is “divisible,” courts deviate from this categorical approach to apply a modified categorical approach. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). A “divisible” statute lists elements in the alternative and defines multiple crimes. Id.

The modified categorical approach consults particular documents to ascertain of what crime and with what elements a court convicted a defendant. Id. Courts should only use the modified categorical approach in limited circumstances. Where a statute defines an offense broadly and is not divisible, the modified categorical approach “has no role to play.” Cabrera-Umanzor, 728 F.3d at 350 (quoting Descamps, 133 S. Ct. at 2285).

Thus, the Fourth Circuit’s first task was to determine if the West Virginia statute under which the District Court convicted the defendant was divisible and therefore subject to the modified categorical approach. While the Fourth Circuit conceded that the statute could be “generally divisible,” it argued that such general divisibility was not sufficient to apply the modified categorical approach without first engaging in the following two-part inquiry: (i) Was the state statute’s definition of “attempt” consistent with the generic definition of “attempt” in the career offender enhancement? United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1240 (9th Cir. 2014), and (ii) Was the underlying state offense a categorical match for the Guideline predicate offense? Id. The Fourth Circuit stated that the District Court should not have applied the modified categorical approach without first engaging in these analyses.

West Virginia’s Attempt Statute Is A Categorical Match For the Generic Definition of Attempt

West Virginia’s attempt statute requires both specific intent to commit the underlying crime and an overt act in furtherance of that crime. Similarly, Fourth Circuit precedent defines “attempt” as requiring both culpable intent to commit the charged crime and a substantial step toward committing the crime. The Fourth Circuit argued that the intent requirement in the West Virginia statute was no broader than that of the Fourth Circuit statute and that the act elements in each statute were consistent; each required more than preparatory acts that strongly indicated criminal intent. Therefore, the Fourth Circuit held that the statutes were substantially similar and were a categorical match.

The Prior State Conviction Was A “Controlled Substance Offense”

The Fourth Circuit held that the West Virginia controlled substance statute was no broader than § 4B1.2 of the Sentencing Guidelines. West Virginia Code § 60A-4-401 prohibits the manufacture, delivery, or possession with intent to manufacture or deliver of controlled substances. Sentencing Guideline § 4B1.2 proscribes the manufacture, importation, exportation, distribution, or dispensation of controlled substances. Thus, the two acts have substantially similar intent and action requirements, and the defendant’s underlying offense was a categorical match of a generic controlled substance offense.

Disposition

The District Court erred in applying the modified categorical approach before analyzing the two inquiries above. However, the District Court reached the proper result in classifying the prior state conviction as a “controlled substance offense” and in classifying the defendant as a career offender. Consequently, the Fourth Circuit affirmed.

 

 

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By Paige Topper

On December 10, 2015, in the criminal case of United States v. Daniel Blue, a published opinion, the Fourth Circuit reversed Daniel Blue’s (appellant) prior convictions of conspiracy and possession with the intent to distribute heroin due to insufficient evidence.

Surveillance on Blue Leading to His Arrest

Using the cooperation of a fellow heroin distributor, officers set up a controlled heroin buy in the hopes of arresting a known middleman, Keith Townsend. During the staged buy, officers watched Blue interact with their target in what appeared to be a drug deal with Blue giving Townsend heroin folded into a slice of bread. Two weeks later the officers decided to start tracking Blue by placing a hidden GPS on Blue’s vehicle.

In their surveillance of Blue’s whereabouts the officers followed Blue to Fox Hall apartment complex where they watched Blue enter the apartment building empty-handed and return about five minutes later with a cloudy white, plastic container in his hand. The officers then followed Blue to a lake in Baltimore County known for narcotics transactions. Blue entered into a vehicle with another male, Jamar Holt, and drove around the lake in Holt’s car before returning to his own vehicle. The officers followed Holt under the assumption that a drug transaction between Holt and Blue had occurred. Holt ultimately escaped the officers. After this failed attempt, the officers went to the new address that Blue was at, according to the GPS, and arrested Blue upon his departure from a residence on Sinclair Lane. Ultimately, a grand jury convicted Blue of conspiracy to distribute heroin and possession with intent to distribute heroin.

Insufficient Evidence for Possession with Intent to Distribute 

First the Fourth Circuit addressed Blue’s sufficiency of the evidence argument for the possession with intent to distribute 100 grams or more of heroin conviction. This conviction referred to 108.6 grams of heroin located in one of the Fox Hall apartment units hidden in a footstool. The standard of review for this evidence was whether such evidence could support a rational determination of guilt beyond a reasonable doubt. The government argued there was enough evidence because the officers watched Blue enter and leave the Fox Hall apartment building and that Blue lied to the officers about not being at that location.

The Fourth Circuit noted that the two principal issues with this count were (1) whether Blue knew the 108.6 grams of heroin was in the footstool in the front bedroom of the apartment unit and (2) whether Blue had the power to exercise dominion and control over the heroin. Dominion and control cannot be established by mere proximity to the drug, by mere presence on the property where the drug is found, or by mere association with the person who does control the drug.

Although the officer’s observed Blue entering and exiting the apartment building, they did not see Blue enter the specific apartment unit where the heroin was found nor did they see Blue interact with the occupants of the apartment unit in question. Therefore, the Fourth Circuit determined there was insufficient evidence to establish Blue’s possession of the heroin found in the footstool. The  government argued that Blue was using the apartment as a stash house and thus had constructive possession of the heroin. The Fourth Circuit declared that the government did not provide constructive notice of the heroin through proof that Blue resided or leased the apartment, that Blue’s personal possessions were in the apartment, or that Blue was associated with the occupants of the apartment. As a result of the lack of connection between Blue and the occupants of the apartment, the government’s theory of a stash house was found to be unreasonable. The complete lack of connection between Blue and the heroin convinced the Court that the evidence did not support a rational determination of guilt beyond a reasonable doubt.

The Fourth Circuit also rejected the government’s reliance on case law that suggested the holder of a key has constructive possession of the contents in the apartment. In particular, the Court noted that no Fourth Circuit case had ever adopted the overly broad statement of the law derived from the Eighth Circuit. Moreover, the Eighth Circuit itself qualified the statement, which was located in a footnote, by rejecting the government’s argument in that case that the defendant’s possession of a key to the home, by itself, proved the defendant knowingly possessed cocaine found in the home. Here, the fact that Blue had a key to the apartment did not provide sufficient evidence to establish guilt beyond a reasonable doubt.

Insufficient Evidence for Conspiracy to Distribute

Blue’s second challenge was against the sufficiency of the evidence to support the charge for conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin. The Fourth Circuit again found that the evidence did not support a rational determination that Blue was guilty of conspiring to distribute. To have found Blue guilty for conspiracy for distribution specifically over 100 grams the government had to tie Blue and another person to an agreement to distribute the 108.6 grams of heroin. The government failed to present such evidence.

Fourth Circuit Reversed Both Convictions

As a result of the lack of sufficient evidence linking Blue to the 108.6 grams of heroin in the footstool and linking Blue to an agreement to distribute that amount of heroin, the Fourth Circuit reversed both convictions of conspiracy and possession with intent to distribute heroin.

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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.

 

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By Whitney Pakalka

On October 22, 2015, the Fourth Circuit issued its published opinion in the criminal case of United States v. Slocumb. The Fourth Circuit reversed the District Court for the Western District of Virginia’s denial of a motion to suppress evidence. Because there was no particular and objective basis that created a reasonable suspicion for officers to detain Slocumb, the Fourth Circuit reversed the denial of Slocumb’s motion.

Slocumb’s Arrest and Conviction 

On March 18, 2013, Andre Slocumb, his girlfriend, Sierra Lewis, and an infant were in the parking lot of a salvage yard around midnight, transferring a child car seat from one vehicle to another. This same parking lot was chosen by the Culpeper, Virginia Police Department as a staging area prior to executing a search warrant on a nearby home. Approximately ten officers arrived at the parking lot, including Lieutenant Timothy Chilton. Chilton approached Slocumb and Lewis to inquire about their presence because the parking lot was known for criminal activity. Slocumb informed Chilton that he was there to pick up Lewis, whose car had broken down. Officer Chilton though Slocumb began hurrying Lewis, acted evasively, did not make eye contact, and gave mumbled responses to his questions.

When another officer asked Slocumb for identification, Slocumb provided a false name. The name given came back as valid for someone that matched Slocumb’s appearance. One of the officers then asked Lewis for Slocumb’s name, and she identified him as Hakeem Jones, a different name than Slocumb had given. Slocumb was placed under arrest for providing a false name, and officers discovered close to $6,000 on his person. Lewis gave consent for the officers to search the car that Slocumb had arrived in to pick her up. The officers found methamphetamine, cocaine powder, cocaine base, and a small amount of marijuana in the car.

Slocumb was indicted by a federal grand jury on three counts, and filed a motion to suppress the physical evidence seized by officers and incriminating statements he made after his arrest. The District Court denied Slocumb’s motion, finding that the officers had reasonable suspicion to justify Slocumb’s initial detention and had probable cause to arrest him. Slocumb pleaded guilty and was sentenced to ninety-four months on all three counts, to run concurrently. He appealed the denial of his motion to suppress, arguing that his Fourth Amendment right had been violated because he was detained by the police without a reasonable suspicion he had violated the law.

Fourth Amendment Right to be Free from Unreasonable Search and Seizure 

The Fourth Amendment provides the right to be free from unreasonable search and seizure. In considering when a police stop constitutes an unreasonable seizure, The Supreme Court has held that an officer may detain a person to conduct a brief investigation if he “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968). In order for the police to have a reasonable basis for stopping an individual, “the officer ‘must be able to point to specific and articulable facts which . . . reasonably warrant that intrusion.’” Id. at 21.

The Fourth Circuit applies a totality of the circumstances test in considering whether an officer had a reasonable suspicion of criminal activity justifying a stop. The Court cautioned that the government “must do more than simply label a behavior as ‘suspicious’ to make it so,” but must “articulate why a particular behavior is suspicious . . . given the surrounding circumstances.” United States v. Massenburg, 654 F.3d 480, 491 (4th Cir. 2011).

The Officers in this Case Did Not Have a Reasonable Basis for Detaining Slocumb

 The Fourth Circuit concluded that the factors considered by the District Court did not satisfy the totality of the circumstances test. The District Court considered, among other things, the lateness of the hour that Slocumb was in the parking lot, the fact that the parking lot belonged to a business that had been closed for several hours, and that it was a high crime area. The Fourth Circuit found that all of these considerations could contribute to a finding of a reasonable suspicion, however these “objective factors ‘do[] little to support the claimed particularized suspicion as to [Slocumb].’” Id. at 488.

The District Court had also considered Slocumb’s particular behavior in hurrying Lewis, avoiding eye contact, and giving mumbled answers. The Fourth Circuit found this behavior to be insufficient to support reasonable suspicion. The Court noted that behavior that has supported a reasonable suspicion included attempts to flee or “more ‘extreme’ or unusual nervousness or acts of evasion.” United States v. Foreman, 369 F.3d 776, 784 (4th Cir. 2004). Heavy breathing, sweating, and trembling hands were suggested by the Court as behaviors that may demonstrate an unusual nervousness, and thus support a reasonable suspicion. The Court found that Slocumb did not attempt to evade officers, but instead acknowledged them and answered their questions in a way that was consistent with his behavior. The Court found that the police had “no more reason to suspect that Slocumb was engaged in criminal activity than [they did] to believe his stated purpose and corresponding actions.”

The Fourth Circuit Reversed the District Court’s Denial of Slocumb’s Motion to Suppress

Because the police could not provide a sufficient objective and particular basis to create a reasonable doubt that would justify detaining Slocumb, the Fourth Circuit reversed the District Court’s ruling, vacated Slocumb’s conviction and sentence, and remanded for further proceedings.

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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 Malorie Letcavage

Overview

On June 24, 2015 the Fourth Circuit issued its published opinion in the criminal case, U.S. v. Obey. This case was based on Gregory Obey’s claims that the government breached its plea agreement in making its sentencing recommendation and that the district court did not have the authority to order his sentence to run consecutively to any future sentence. The Court held that the prosecutor did not breach the plea agreement and that the district court did not commit plain error in ordering a consecutive sentence to any future state or federal sentence.

Conviction and Remand

Obey was convicted of several counts related to possession and distribution of cocaine and sentenced to 540 months imprisonment. But the government then filed a motion to remand for a new trial, which was granted. On remand, Obey entered a guilty plea to cocaine aiding and abetting. The written plea agreement stated that Obey would waive his right to appeal and the government would recommend an eighteen-year term of imprisonment. At the sentencing hearing, the government did recommend this term and explained that it was the result of negotiations. However, the district court decided that the recommendation lacked merit and instead imposed the maximum sentence of 240 months imprisonment. The district court also directed the sentence to “run consecutive to any other State or Federal sentence, including any unimposed sentence he might receive for the pending state murder charge.”

Obey contended that the government breached the plea agreement and the prosecutor undermined the plea agreement by implying personal reservations about the sentencing recommendation. He further contended that the district court erred in ordering that his sentence run consecutively to any future “State or Federal sentence.” The Court reviewed both contentions under a plain error standard.

Prosecutor Fulfilled the Plea Agreement 

The Court held that the prosecutor upheld the plea agreement because he repeatedly urged the district court to adopt the eighteen-year term of imprisonment. Even though the plea agreement did not require it, the prosecutor explained the term recommendation. Obey claimed that the prosecutor undermined the plea agreement by implying personal reservations about the sentencing recommendation and cited United States v. Brown and United States v. Grandinetti. However, the Court held that those cases did not apply because in Obey’s case the prosecutor did not criticize the terms of the agreement or express doubt about the propriety of the recommended sentence. He simply continued to recommend the eighteen-year term and explained that it was the result of plea negotiations.

No Plain Error In Ordering Consecutive Sentences

The Court then turned to the second argument. The district court relied on Setser v. United States, which held that a district court can impose a sentence consecutive to an anticipated state sentence. However, it did not address whether it could impose a sentence consecutive to an anticipated federal sentence. The Fourth Circuit had previously held in United States v. Smith that a district court lacked authority to order a sentence to run consecutive to any future sentence, but Setser abrogated that in reference to future State sentences. Therefore, the holding in Smith that a district court may not order a sentence consecutive to an anticipated federal sentence is still controlling precedent. The Court found that although the district court’s order was broader than authorized by Setser, it could not find that it was sufficient to meet the plain error standard. The Court had never previously addressed the issue and the holding in Smith was not so clear as to require reversal. Therefore, the district court did not plainly err.

Fourth Court Affirms the Lower Court

The Fourth Circuit affirmed the judgment of the district court. It held that the government did not breach its plea agreement and there was no plain error in recommending the sentence to run consecutive to any future State or Federal sentence.

 

By Sarah Saint

On May 20, 2015, the Fourth Circuit issued a published opinion in the criminal case U.S. v. Wynn, affirming the district court’s judgment. Anthony Wynn was convicted of drug offenses and sentenced to imprisonment followed by supervised release. Wynn violated the conditions of his release by possessing marijuana. The district court considered Wynn’s prior drug offenses when determining the grade of these possession violations, which Wynn argued was against the United States Sentencing Commission’s advisory policy statements for violations of probation and supervised release (the “policy statements”). The Fourth Circuit held that the district court did not err by using Wynn’s prior convictions to select the violation grade and accordingly affirmed the district court’s judgment.

The Marijuana Possessions and Revocation of Supervised Release

In 2003 Wynn was sentenced to a 150-month imprisonment, followed by a five-year supervised release, after being convicted of conspiracy to distribute and possession with intent to distribute under 21 U.S.C. §§ 846 and 841(a)(1). The conditions of the supervised release included refraining from unlawful use of controlled substances and submitting to drug testing.  After Wynn began his supervised release, his probation officer alleged Wynn had violated these conditions, including possession of marijuana on six occasions. Wynn admitted to these possessions and the district court found Wynn had violated the terms of his supervision, revoking his supervised release.

The probation officer used Wynn’s prior drug convictions to determine that his marijuana possessions were Grade B violations and punishable by between twenty-one and twenty-seven months imprisonment. Wynn argued that the marijuana possessions were Grade C violations and that the probation officer could not use his prior drug convictions in determining the violation grade under the policy statement. Because these are Grade C violations, Wynn argued for between eight and fourteen months’ imprisonment. The district court rejected Wynn’s argument and found the acts of possession constituted Grade B violations. The district court then sentenced Wynn to a term of twenty-four months imprisonment.

Standard of Review

Wynn only challenged the procedural calculation of the grade and thus the sentencing range. The Fourth Circuit reviewed the district court’s judgment de novo because properly applying policies is a question of law. The Court considered whether the district court correctly determined that the marijuana possessions were Grade B violations, or if they were actually Grade C violations as Wynn argued.

Grade B vs. Grade C Violations

Under U.S.S.G. § 7B1.1(a), Grade B violations are appropriate when the conduct constitutes an offense punishable by a term of imprisonment exceeding one year. Grade C violations are appropriate when the conduct constitutes an offense punishable by a term of imprisonment of one year or less. Under 21 U.S.C. § 844(a), drug possession offenses by a non-recidivist are punishable by a term of imprisonment of one year or less. However, drug possession offenses by a recidivist are punishable by a term of imprisonment greater than one year.

Wynn’s Arguments Against Using Prior Offenses Are Unpersuasive

Wynn argued that the Court should use 21 U.S.C. § 851(a)(1) to hold that when determining imprisonment for supervised release violations, a court cannot consider a defendant’s prior criminal history unless the government files notice. However, the Court did not find this persuasive and determined that this statute only applies to sentencing after a guilty plea in a trial and in immigration proceedings.  Further, the purpose of a supervised release revocation hearing is to determine the breach of trust committed by the defendant by considering the context. Accordingly, the Court determined the government could use Wynn’s prior convictions in selecting the violation grade.

Wynn also argued that, under U.S.S.G. § 7B1.1 application notes, the violation grade should be based only on conduct committed during supervised release. However, the application notes state that the court should consider all of the defendant’s conduct. The Court determined the application notes, then, suggest all conduct affects the violation grade.

The Fourth Circuit Affirmed the Decision of the District Court

Because the district court did not err in selecting Grade B for the supervised release violation based on Wynn’s prior convictions, the Fourth Circuit affirmed the district court’s judgment.

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By Eric Jones

On April 28, 2015, the Fourth Circuit issued a published opinion in the criminal case United States v. Braxton.  The Circuit Court held that Fed. R. Crim. P. 11(c)(1) explicitly prohibits district courts from participating in discussions about plea agreements in any way.  Because the United States District Court for the District of Maryland impermissibly made repeated comments about the benefits of accepting a guilty plea to Braxton just before he elected to plead guilty, the Fourth Circuit vacated the proceedings and remanded for further proceedings.

Background and Proceedings Below

In 2012, Savino Braxton was charged with possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 841(a) (2012).  This charge carries a minimum ten-year sentence if convicted.  Braxton, however, has a prior felony drug conviction, which allows the government to file a prior felony information that would effectively double the mandatory minimum to twenty years’ imprisonment.  Braxton’s court-appointed counsel repeatedly expressed concern that if he did not plead guilty, the prosecutor would file a prior felony information.  Braxton nevertheless insisted that he desired to go to trial, where he planned to test the validity of the weight of the drugs.  On November 19, 2012, the government elected to file a prior felony information and establish a minimum twenty-year sentence if Braxton was found guilty at trial.  Prior to trial, the government formally offered Braxton a plea agreement wherein he would face a minimum of ten years and a maximum of fifteen.  The morning the trial began, the court dutifully memorialized for the record that Braxton had received and rejected the plea agreement, and wished to proceed to trial.  The district court went on to admonish Braxton repeatedly for electing to forgo the plea agreement, saying “I am not favorably inclined towards having you go to trial and trigger a mandatory minimum of 20 years, as opposed to a plea offer that’s down in the 10 to 15 year range in terms of years of your life” and compared going to trial to “put[ting] [your] head in a buzz saw that makes absolutely no sense.”  The district court then ordered a ten-minute recess, advising Braxton to “talk to your lawyer.”  After that recess, the district court again admonished Braxton that a “defendant shouldn’t put his head in a vice [sic] and face a catastrophic result just over a dispute over drug quantity. That’s the point.”  The court then dismissed for lunch.  During that lunch, Braxton changed his mind and elected to plead guilty.  Braxton later attempted to withdraw his guilty plea, arguing it had been involuntary.  Nevertheless, Braxton was sentenced to eleven and one-half years, and this appeal followed.

Federal Rule of Criminal Procedure 11(c)(1)

Under Fed. R. Crim. P. 11(c)(1), an “attorney for the government and the defendant’s attorney…may discuss and reach a plea agreement.  The court must not participate in these discussions.”  As the Fourth Circuit explained, this prohibition serves three primary goals.  First, it diminishes the possibility of judicial coercion of a guilty plea.  Second, it protects against unfairness and partiality in the judicial process.  Third, it eliminates the impression that the judge is an advocate for the agreement and not a neutral arbiter.  Although well-intentioned, the district court repeatedly suggested that the plea agreement was in Braxton’s best interests, which is in direct conflict with this rule.  Furthermore, the Fourth Circuit explained that the close proximity in time between when the comments were made and when the plea was accepted heightened the probability that Braxton was unduly influenced by the district court.

Braxton’s Statement That the Plea Was Given Voluntarily Was Insufficient

The Fourth Circuit was unconvinced by the government’s argument that Braxton’s guilty plea was voluntary.  Although the district court asked if Braxton felt “forced or threatened or pushed” to accept the plea agreement and Braxton replied “No, sir,” the Fourth Circuit held that his response was inconclusive.  The district court created “an unacceptable risk” that Braxton involuntarily entered his guilty plea in order to avoid offending the court, and thus his flat statement that he was not coerced was ineffective.

The District Court Cannot Remark Upon the Advantages of a Plea Agreement

The government also argued that, under Missouri v. Frye, the court must remark upon the advantages of the plea agreement and the disadvantages of trial in order to ascertain whether the defendant’s understanding of the decision is sufficient.  As the Fourth Circuit explained, however, the district court’s duties under Frye extend only to memorializing the terms of the plea agreement, and ensuring that the defendant understands them.  Thus, it was improper for the district court to advocate for the plea agreement at all, and the requirements of Frye do not make the comments of the district court in this case permissible.

Conclusion

The Fourth Circuit held that, although it did not appear that the district court intended to coerce Braxton, there was nevertheless a reasonable risk that Braxton had been influenced by the court.  Thus, because the district court’s plain error affected Braxton’s substantial rights, the Fourth Circuit vacated Braxton’s sentence and guilty plea, and remanded for further proceedings in front of a different judge.

By Lauren D. Emery

On April 10, 2015, in United States v. Anthony Champion, an unpublished criminal opinion, the Fourth Circuit affirmed the ruling of the district court.

Traffic Stop Results in Discovery of Stolen Weapons

On January 13, 2013, a Virginia State Trooper pulled over Anthony Champion after witnessing him speeding and violating a Virginia law against having dangling objects which obstruct a driver’s view of the roadway. Rather than immediately pull over, Champion drove erratically and, after finally pulling over, exited the vehicle and one of his passengers moved into the driver’s seat.  When the trooper approached the car, Champion admitted he did not have a license and the trooper smelled a “‘fairly strong’ odor of marijuana.”  At this point the trooper requested additional backup and then conducted a search of the vehicle, including the trunk.  During the search of the trunk, the troopers found nine stolen weapons in a gym bag.

Does Marijuana Odor Give Probable Cause to Search a Car’s Trunk?

Champion appealed his conviction for transporting stolen firearms which were found in the  trunk of the car he was driving.  Specifically, he argued that the evidence of the weapons in the trunk should have been suppressed at trial because “the mere odor of burnt marijuana in the passenger compartment is insufficient to establish probable cause to search the trunk of a car.”

Totality of the Circumstances Suggests Trooper had Probable Cause to Search Trunk

In its opinion, the Fourth Circuit declined to decide whether the smell of marijuana in the passenger compartment of a car is ever sufficient on its own to give probable cause to search a vehicle’s trunk–an issue on which the circuit courts appear to be split.  Instead, the Fourth Circuit concluded that the district court considered a totality of the circumstances rather than relying solely upon the odor of marijuana.  The factors suggesting the troopers had probable cause included: the strong odor of marijuana; the fact that when questioned about whether there was contraband in the car, Champion replied “none that I know of”; his passengers’ confessions that they had been smoking marijuana while in the vehicle; and the fact that the occupants gave inconsistent statements regarding their destination.   All of these factors suggested the occupants of the vehicle were involved in some criminal activity and as such there was probable cause to search the trunk.

Fourth Circuit Affirms District Court Judgment

The Fourth Circuit affirmed the district court’s denial of Champion’s motion to suppress the firearms discovered in the trunk because they were found as a result of a lawful search of the vehicle.

By Michael Mitchell

Today, in the criminal case of United States v. Jenkins, an unpublished per curiam opinion, the Fourth Circuit affirmed the decision of the District Court for the District of South Carolina, upholding the defendant’s drug conviction and 170-month sentence.

Defendant Challenges Plea Bargain and Sentence

The Fourth Circuit considered the adequacy of the defendant’s plea hearing and the reasonableness of his sentence with regard to his immigration status.

Defendant Pled Guilty to Multiple Drug Charges

The defendant Raynard Allen Jenkins pled guilty to conspiracy to possess 280 grams of cocaine base and 500 grams of cocaine with the intent to distribute as well as possession of marijuana.  He was sentenced to 170 months in prison in accord with the Sentencing Guidelines, which provide for an enhanced sentence in certain drug-related convictions.

No Meritorious Grounds for Appeal

In accord with Anders v. California, the Court reviewed the entire record for any meritorious grounds for appeal and found none.  Thus, the court considered whether the defendant’s plea hearing and sentence were reasonable.

No Plain Error in Plea Bargain or Sentencing

The Fourth Circuit considered the adequacy of the defendant’s plea hearing by reviewing the record for plain error, holding that the district court substantially complied with Federal Rule of Criminal Procedure 11.  The court’s failure to alert the defendant of the potential issues with his immigration status as a result of his plea agreement did not affect his rights.  The Fourth Circuit also held that the defendant’s 170-month sentence was procedurally and substantively reasonable.

Fourth Circuit Affirms Conviction & Sentence

The Fourth Circuit affirmed the district’s court’s judgment upholding the defendant’s conviction for conspiracy to distribute cocaine and marijuana possession as well as his 170-month prison sentence.

By Michael Mitchell

Today, in the criminal case of United States v. Pina, an unpublished per curiam opinion, the Fourth Circuit affirmed the decision of the District Court for the Western District of North Carolina, upholding the defendant’s conviction and enhanced sentence for drug charges and firearm possession.

Defendant Challenges Two-Level Sentencing Enhancement

The Fourth Circuit considered whether the district court properly applied a two-level enhancement to the defendant’s sentence for drug-related conspiracy and possession of a firearm.  The defendant also alleged that his guilty plea was coerced and his sentence was “substantively unreasonable.”

Defendant Convicted for Drug & Firearm Charges

The district court sentenced the defendant Jose Francisco Jiminez Pina to 180 months in prison after he pled guilty to conspiracy to distribute and possess with intent to distribute at least 500 grams of a mixture and substance containing a detectable amount of methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime.  The district court sentenced the defendant to the mandatory-minimum 120 months for the drug conspiracy and 60 consecutive months for the firearm conviction.  Acknowledging that there were no meritorious issues on appeal under the framework of Anders v. California, the defendant challenged whether the two-level enhancement was properly applied and whether his case should be remanded to the district court for application of the Sentencing Guidelines.

Fourth Circuit Applies “Plain Error” Standard of Review

To evaluate whether the two-level enhancement was appropriate, the Fourth Circuit considered reasonableness “under a deferential abuse-of-discretion standard,” according to Gall v. United States.  The court found no “‘significant procedural error,” such as improper calculation of the sentencing range under the Guidelines or inadequate explanation of the sentence to the defendant.  Therefore, the Fourth Circuit instead reviewed the case for “plain error only.”

Mandatory Minimum Sentence Satisfies Sentencing Guidelines

The Fourth Circuit considered the defendant’s claim by evaluating the Sentencing Guidelines, finding that the defendant had been convicted of a crime wherein methamphetamine production or distribute was a principal purpose of the premises.  The district court applied the mandatory minimum sentence of 120 months for the defendant’s drug conviction, “the lowest sentence it could impose.”  Thus, the Fourth Circuit determined that there was “no plain error” in the calculation of the defendant’s sentence according to the Sentencing Guidelines.  The Fourth Circuit also found the sentence “substantively reasonable” based on a “totality of the circumstances.”  The defendant was also unable to overcome the rebuttable presumption in favor of the district court’s judgment with regard to his plea agreement allegations.

Fourth Circuit Affirms District Court’s Enhanced Sentence

The Fourth Circuit affirmed the district court’s judgment upholding the defendant’s conviction for conspiracy to distribute methamphetamine and firearm possession as well as the two-level sentencing enhancement for a total of 180 months in prison.

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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