Wake Forest Law Review

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By Eric Jones

On December 18, 2015, the Fourth Circuit issued a published opinion in the criminal case United States v. Stover.  Lavelle Stover was convicted of possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1).  At trial, Stover motioned to suppress the firearm that he discarded in front of his vehicle, but the motion was denied.  On appeal Stover argued that the firearm should have been suppressed as the product of an illegal seizure under the Fourth Amendment.  The Fourth Circuit affirmed his conviction.

The Arrest and Trial

In the early morning hours of March 13, 2013, police noticed Stover sitting in a vehicle that was double-parked in a small private parking lot.  When they returned several minutes later and saw that Stover was still double-parked, the officers decided to approach the vehicle because there had recently been several violent robberies in the area.  The uniformed officers activated their emergency lights and aimed a spotlight on Stover’s vehicle as they pulled in to block the car in the parking lot.  As the officers exited the patrol car, Stover exited his vehicle and made his way to the front of his car.  He completely ignored the officers’ ordering him to stop and return to his vehicle.  Stover tossed a loaded nine millimeter handgun into the grass in front of his vehicle.  One officer proceeded along the right side of Stover’s vehicle and confronted him with his gun drawn, believing that Stover was preparing to run.  At that point Stover silently complied with the officers’ orders and returned to his vehicle.

At trial in the District Court for the District of Maryland, Stover motioned to suppress the handgun on the theory that it was the product of an illegal seizure under the Fourth Amendment.  The District Court found that Stover had not submitted to police authority until after abandoning the firearm, and thus the protections Fourth Amendment did not apply.  The firearm was entered into evidence, and Stover was convicted by a jury and sentenced to 57 months in prison.  Stover filed a timely appeal.

The Fourth Amendment’s Protections Against Illegal Seizure

As the Fourth Circuit explained, the moment that Stover was seized is vital to determine whether or not the firearm should have been suppressed.  If the officers had reasonable suspicion to stop Stover, the Fourth Amendment is not implicated and the weapon was properly entered.  If there was not reasonable suspicion to stop the defendant, however, the Circuit Court explained that the exact circumstances of the stop are important to determine whether an illegal seizure has occurred.  The Fourth Circuit applied a two-part test outlined in California v. Hodari D..

First, the Circuit Court asked whether the Fourth Amendment was implemented due to a show of authority by the officers.  In order to determine whether a show of authority had occurred, the Supreme Court has explained that you must consider whether “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”  As applied here, the Fourth Circuit held that blocking in Stover’s car with a marked police car, activating the emergency lights, using their spotlight, and approaching Stover’s vehicle in uniform all clearly indicated that a show of force had been made, and thus the Fourth Amendment protects against unreasonable seizures.

The second part of the two-part test in order to determine whether the firearm could be admitted into evidence asks precisely when the defendant was seized.  The Fourth Circuit explained that after submitting to police authority, the Fourth Amendment protects against unreasonable seizure.  If the defendant has not capitulated to the police’s orders, however, there has been at most an “attempted seizure,” and the protections of the Fourth Amendment are not applicable until after the defendant has submitted.  The Fourth Circuit explained that if a defendant is fleeing from the police, he has not submitted and thus anything he tosses to the side as he runs is not subject to the protections of the Fourth Amendment.  If, however, the defendant has submitted (by being tackled, by stopping voluntarily, or any other submission), the Fourth Amendment applies to anything found on his person.

Stover Did Not Submit to the Officers until After Abandoning His Firearm

In this case, the Fourth Circuit held that Stover had not submitted to the officers until after abandoning the firearm, and thus the Fourth Amendment was not applicable.  The Court relied on the fact that Stover exited his vehicle despite the flashing emergency lights and direct orders to remain in his vehicle.  He then proceeded toward the front of his car, directly away from the officers, and did not indicate that he heard them or intended to comply.  Only after abandoning his firearm and being confronted by the armed officer did Stover submit to their authority and follow their commands.  Thus, because Stover was not seized until after he threw the handgun into the grass, he simply abandoned it and it was not seized by the police.

One Circuit Judge dissented in this case, arguing that Stover acquiesced to the officers’ orders by remaining on the scene and simply attempted to abandon his firearm while remaining under police control.  If this were the case, the legality of the seizure would have been determined by whether or not the officers had reasonable suspicion to stop Stover.  The majority, however, held that ignoring verbal orders and proceeding away from officers is not consistent with submitting to the police, and thus no seizure had yet occurred.

The Fourth Circuit Affirmed Stover’s Conviction

Because the evidence indicated that Stover had not submitted to the police and may have been attempting to flee when he abandoned the handgun, the Fourth Circuit affirmed that he had not been seized and thus his firearm was not the product of an illegal search or seizure.  Because the handgun was properly admitted as evidence, therefore, the Circuit affirmed Stover’s conviction.

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By: Mikhail Petrov

On June 30, 2015, in the criminal case of United States v. Newbold, the Fourth Circuit issued a published opinion vacating Joseph K. Newbold’s sentence and remanding the case for proceeding consistent with the Court’s opinion. In this case, the Fourth Circuit examined whether Newbold’s guilty plea from 2005, paired with three preceding convictions from 1980, 1981, and 1984, made him an “armed career criminal.” The Armed Career Criminal Act mandates a fifteen-year mandatory-minimum prison term for anyone who violates 18 U.S.C. § 992(g) (felon in possession of a firearm) and has had three previous “serious drug offense” convictions. The Fourth Circuit found that Newbold does not possess the requisite, predicate “serious drug offenses” to make him an “armed career criminal.”

The Facts

On September 8, 2005, Newbold pleaded guilty to a felon in possession of a firearm count in violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm). After a three-level reduction for acceptance of responsibility, the Presentence Investigation Report (PSR) calculated an offense level of 31 and a criminal history category of IV. The PSR used the “armed career criminal” guideline over the “career offender” guideline because it resulted in a higher sentence. The PSR cited three North Carolina convictions from 1980, 1981, and 1984 as basis for enhancing the penalties.  Additionally, PSR noted a statutory mandatory-minimum prison term of fifteen years under the Armed Career Criminal Act (ACCA). Although Newbold objected to the ACCA enhancement, the district court overruled. Newbold was sentenced to 18.8 years in prison followed by five years of supervised release.

Newbold appealed the “armed career criminal” designation, arguing that his three convictions from the 1980’s should not count as ACCA predicates because all of them received an imprisonment of less than ten year.  Since the three convictions were for less than ten years, they could not be “serious drug offenses” as defined by the statute.

The Fourth Circuit examined Newbold’s appeal in 2007, and applied United States v. Harp, which stated that “convictions could be considered punishable by ten years if the sentencing law allowed for the possibility of any defendant to be sentenced to ten years’ imprisonment regardless of the maximum punishment applicable to the circumstances of the instant defendant.” Because the maximum that Newbold would have received was ten years, he was indeed convicted of three “serious drug offenses.”

Newbold continued to appeal his conviction in the midst of several changes in Fourth Circuit precedent. In May 2013, the Supreme Court granted Newbold’s certiorari. While the case was pending, the Fourth Circuit decided Miller v. United States, which again undermined the precedent by announcing that United States v. Simmons was retroactively applicable on collateral review, and thus to Newbold’s case. Previously, Simmons overturned Harp by stating that “federal courts should not apply hypothetical sentencing enchantments” and thereby lump all defendants into the same category for sentencing purposes. United States v. Simmons, 649 F.3d 237, 249 (4th Cir. 2011). The Supreme Court then remanded back to the Fourth Circuit for further consideration because Miller made Simmons applicable to Newbold’s case. Due to the lengthy history of Newbold’s case, the Fourth Circuit denied the government’s motion to remand back to district court because everything needed to decide the purely legal question was already available.

The Rule of the Case

Newbold challenges his erroneous designation as an “armed career criminal” under the ACCA. The ACCA designates an “armed career criminal” as anyone with three “serious drug offense” convictions. The ACCA also mandates a fifteen-year mandatory-minimum prison term for an “armed career criminal.” See 18 U.S.C. § 924 (e)(1). A “serious drug offense” is defined in pertinent part as “an offense under State law, involving manufacturing, distribution, or possessing with intent to manufacture or distribute, a controlled substance…for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924 (e)(2)(A)(ii). If Newbold was not designated as an “armed career criminal,” he would have faced a ten-year maximum sentence for his felon in possession conviction.

The Reasoning of the Fourth Circuit

The Fourth Circuit first noted that Newbold may challenge his sentence. A post-conviction change in the law made rendering the defendant’s conduct no longer criminal can be corrected by a 28 U.S.C. § 2255 motion. Citing Welch v. United States, the Fourth Circuit also stated that circumstances where a change in law reduces the defendant’s statutory maximum sentence below the imposed sentence has long been cognizable on collateral review. Welch v. United States, 604 F.3d 408, 412-13 (7th Cir. 2010). Therefore, Newbold may challenge his sentence on collateral review.

Newbold challenged only the use of his 1984 conviction as an ACCA predicate. The alleged federal predicate was a possession with intent to sell and deliver a controlled substance (the “PWID” offense). The PWID offense was a class H felony, which carried a presumptive term of three years and a maximum of ten years.  The Fourth Circuit determined that an analysis of the “maximum sentence that a particular defendant could have received” requires an examination of a defendant’s “offense class” and the applicability of the “aggravated sentencing range.” This is in contrast to the Fourth Circuit’s previous reliance on Harp, where the Court looked to “the maximum aggravated sentence that could be imposed for the crime upon a defendant with the worst possible criminal history.” 406 F.3d at 246. Harp has since been overruled by Simmons, which guided the Fourth Circuit opinion in this case. Simmons is applicable to the case at hand through Miller.

There is nothing in the record to indicate that Newbold’s PWID offense could have been punished by the ten year maximum. Simmons instructs that the court look at the conviction itself, and in this case there were no aggravating factors supporting a sentence for the ten year maximum. 694 F.3d at 243.

In contrast, because the state court was not required to record aggravating factors, the government urged the Fourth Circuit to assume their existence. The Fourth Circuit reasoned that such type of speculation would “turn Simmons on its head.” The Fourth Circuit further stated that such an approach would return the inquiry back to the Harp era’s problem of the “worst-case defendant.”

Accordingly, the Fourth Circuit followed Simmons to consider not the hypothetical “worst-case defendant,” but the specific criminal history of Newbold. The Fourth Circuit stated that it is clear that the maximum sentence Newbold faced for the PWID offense was three years. Therefore, the 1984 offense was not a “serious drug offense” because the maximum sentence that Newbold could have received was less than ten years. Because ACCA requires three “serious drug offenses,” and there are at most two here, Newbold cannot be held as an “armed career criminal.”

The Fourth Circuit Vacated Newbold’s Sentence

The Fourth Circuit held that Joseph K. Newbold did not commit a “serious drug offence” in 1984 and therefore cannot be considered an “armed career criminal.” Newbold should not have received the fifteen-year minimum sentence mandated by the ACCA for “armed career criminals.” Therefore, the Fourth Circuit vacated Newbold’s sentence and remanded the case for proceeding consistent with its opinion.

Wake Forest University School of Law’s Appellate Advocacy Clinic, under the guidance of Professor John J. Korzen, argued this case on behalf of Joseph K. Newbold.

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

By Michael Mitchell

Today, in the criminal case of United States v. Doe, 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 sentence for possession of a firearm by a convicted felon.

Defendant Challenges District Court’s “Armed Career Criminal” Determination

The Fourth Circuit considered whether the district court erroneously determined that the defendant had at least three prior convictions for burglaries committed on different occasions, which would warrant an enhanced sentence under the Armed Career Criminal Act (“ACCA”).

Enhanced Sentence for Repeat Offender

The district court sentenced the defendant Lawrence Doe, Jr. to 180 months in prison after he pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(1)(g) (2012). In order to qualify for the ACCA, the defendant must have the requisite number of prior convictions. For burglaries, the defendant must have at least three prior convictions from separate and distinct incidents in order to receive a longer prison sentence.

District Court Has Discretion to Determine Qualification

Under Almendarez-Torres v. United States, the district court can determine whether a defendant’s prior conviction qualifies for the ACCA.  This determination does not need to be submitted to a jury nor proven beyond a reasonable doubt in order to meet the requirements for an increased sentence.

Three Prior Convictions Within District Court’s Discretion

The defendant argued that his prior convictions did not occur on three separate occasions to fall within the scope of the ACCA under Descamps v. United States. However, the court held that Almendaraz-Torres overruled this exception, finding that the district court had the discretion to determine that the defendant’s prior convictions qualified for enhanced sentencing as an armed career criminal without submitting the issue to a jury. The government’s burden of proof is not a preponderance of the evidence rather than beyond a reasonable doubt. Nonetheless, the Fourth Circuit also found that the defendant had “at least three qualifying convictions that occurred on different occasions and arose out of separate and distinct criminal episodes” sufficient to warrant an enhanced sentence under the ACCA.

District Court’s Determination Affirmed by Fourth Circuit

The Fourth Circuit affirmed the district court’s judgment upholding the defendant’s conviction and 180-month sentence as an armed career criminal under the ACCA.

By: Kelsey Kolb

Today, in United States v. Davis, the Fourth Circuit affirmed by unpublished per curiam opinion the District Court for the Middle District of North Carolina’s admission of portions of one witness’ testimony and its entering of the jury’s guilty verdict.

Davis was convicted of carjacking and of carrying and using by brandishing a firearm during and in relation to a crime of violence,in violation of 18 U.S.C. §§ 2119(1), 2 (2012) and 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 (2012), respectively. Davis appealed first, on the grounds that there was insufficient evidence for the former conviction, carjacking. Second, Davis contended that the lower court erred in admitting portions of one witness’ testimony.

There was Sufficient Evidence from which the Jury Could Convict Davis for Carjacking.

The Fourth Circuit, in reviewing the challenge to the sufficiency of the evidence de novo, found that there was sufficient evidence presented to the jury by which it could find that Davis had (1) with intent to cause death or serious bodily harm (2) taken a motor vehicle (3) that had been transported, shipped, or received in interstate commerce (4) from the person or presence of another (5) by force and violence or intimidation.

In viewing the evidence and reasonable inferences in the light most favorable to the government, as is required for reviews of convictions, the court found substantial evidence in the record to support a conclusion of Davis’ guilt beyond a reasonable doubt. The testimony of four witnesses that the jury deemed credible was “ample evidence.” The victim of the carjacking, Woods, testified that he and witness Neese were in a home when Davis and a co-defendant entered. Woods stated that the co-defendant held a pistol, demanded Woods’ car keys, and hit Woods in the head with the pistol when he did not comply. This caused Woods to surrender his car keys. Davis then reached into Woods’ pocket and took his wallet. Davis and the co-defendant exited the home and left in Woods’ car. Woods testified that Davis willingly participated in the offense. The second piece of testimony came from witness Neese. Although unable to identify Davis, Neese corroborated Woods’ testimony. Third, Davis’ cellblock mate further corroborated Woods’ testimony of the events and testified that Davis admitted to him his plan to steal Woods’ car, which included the use of his co-defendants pistol. Finally, Honda employee Brynes testified that the car was made in Ohio.

Regardless of the theories that Davis advanced in trial, the jury was free to take the evidence presented before it, weigh the credibility of each, and return a verdict based on the interpretation it believed. Davis’ argument that he merely borrowed Woods’ car was outweighed by contradictory evidence. His argument that he planned on returning the car was immaterial, given that “intent to permanently deprive” was not an element of carjacking. Finally, his argument that he was coerced by his co-defendant was outweighed by circumstantial evidence that suggested otherwise. Thus, Davis did not meet his burden of proving that the testimonial evidence presented against him was insufficient to support a conclusion of his guilt in the carjacking offense beyond a reasonable doubt.

The court further found that Davis’ argument as to the failure of the prosecution to prove the fourth element, “from the person or presence of another,” was untenable. Even though Woods was not “in or immediately next to his vehicle” when it was taken, the court reasoned that is well established that “presence” does not require this narrow reading. As quoted in United States v. Soler, presence is found when the vehicle is within the victim’s “reach, inspection, observation, or control, “such that he could, “if not overcome by violence or prevented by fear, retain possession of it.” The court found that “presence” was more than satisfied in this case.

Therefore, the Fourth Circuit held that the jury was provided with sufficient evidence from which it could find each element of the carjacking offense to be satisfied, implicating Davis beyond a reasonable doubt.

The District Court did not Err in Admitting Two Portions of Testimony.

Davis’ first preserved challenge, on the grounds of F.R.E. 404b and 403, was to testimony that he planned to bribe Woods with drugs if Woods would drop the charges. The court found that the lower court did not abuse its discretion in admitting this evidence under 404b because the testimony of his plan to intimidate or influence Woods, a witness for the government, was not being offered to prove the defendant’s bad character, but rather to prove his consciousness of guilt and that he knew his case was weak. The testimony was also offered to contradict one of Davis’ theories, that he merely borrowed Woods’ car. This testimony met 404b’s requirement of reliability because it was given by his cellblock mate, an acquaintance for several years, and included specific details of the offense. The testimony also met 403’s requirement that the probative value of the evidence not be outweighed by unfair prejudice. The court held that the extreme probative value of this evidence was not outweighed by its “undoubtedly,” yet not unfairly, prejudicial nature.

Davis’ second preserved challenge, on the grounds of F.R.E. 403, was to testimony that he planned to gain juror sympathy during the trail by crying on the witness stand. The court found that the lower court did not abuse its discretion in admitting this evidence as relevant under 403 because this plan tended to make a fact—his consciousness or guilt—more probable than it would have been without the evidence. Davis, for the first time on appeal, contended that this evidence was also inadmissible on the grounds of 404b. Because Davis failed to preserve this ground for objection, the court reviewed the lower court’s admission for plain error and found none, given the weight of the additional evidence admitted at trial.

Because There was Sufficient Evidence from which the Jury Could Find Davis’ Guilt of Carjacking Beyond a Reasonable Doubt and Because Neither Piece of Challenged Testimony was Inadmissible Under Either 404b or 403, the Fourth Circuit Affirmed Davis’ Conviction.

By Michael Mitchell

Is Enhanced Sentencing Proper when Defendant Has History of Violent Crime?

Today, in United States v. Bennerman, the Fourth Circuit considered whether the district court’s increased sentence for the Defendant as an “armed career criminal” was appropriate given his prior violent felonies in Connecticut.

Firearm Felony Results in Increased Sentence for “Armed Career Criminal”

Defendant Irving Bennerman pled guilty to possession of a firearm by a person previously convicted of a felony offense, in violation of 18 U.S.C. § 922(g)(1) (2012).  The district court classified Bennerman as an “armed career criminal,” which carries harsher sentencing under the Armed Career Criminal Act (“ACCA”), because of his history of violent felonies.  Bennerman was sentenced to 210 months in prison as a result of three prior convictions for violent felonies or serious drug offenses.  Although only two violent felonies are necessary for increased sentencing under the ACCA, Bennerman argued that his first degree robbery conviction in Connecticut did not qualify as a violent felony offense within the scope of the ACCA because the statute allegedly punished “more than just the crime of robbery.”

First Degree Robbery Penalizes “Immediate Use of Force” in Process of Crime

Contrary to the Defendant’s argument, the Connecticut statute for first degree robbery does not punish accessories after the fact.  Conn. Gen. Stat. § 53a-133 penalizes a person who commits robbery, and in the process of the larceny, “uses or threatens the immediate use of force” upon the owner of the property or someone resisting the crime.  Specifically, conviction under Conn. Gen. Stat § 53a-134(a) is appropriate when the perpetrator or another participant, in the process of committing the robbery, “causes physical injury to a non-participant in the crime, is armed with a deadly weapon, uses or threatens to use a dangerous instrument, or displays or threatens the use of what he represents to be a gun.”

Violent Felony Statute Does Not Punish Accessories After the Fact

In an unpublished per curiam decision under de novo review, the Fourth Circuit determined that Bennerman’s first degree robbery conviction under the Connecticut statute was sufficient for qualifying him for the classification of an “armed career criminal” under the ACCA.  The court rejected Bennerman’s argument that the statute covered “far more conduct than the generic crime” and did not constitute a “violent felony” within the meaning of the ACCA.  Under 18 U.S.C. § 924(e)(2)(B), violent felony means “a crime that is punishable by more than one year” and the use of physical force or the risk of physical injury in the perpetration of a burglary.  The Fourth Circuit reasoned that “[a]n accessory after the fact is not a participant in the crime, . . . only becom[ing] involved after the commission of a robbery.”  Because an accessory after the fact was not considered a participant in the crime, the statute did not punish “more than just the crime of robbery” as the Defendant alleged.

Fourth Circuit Affirms Harsher Sentencing for “Armed Career Criminal”

The Fourth Circuit affirmed Bennerman’s first degree robbery conviction as well as the district court’s classification of the Defendant as an “armed career criminal,” upholding his 210-month sentence because first degree robbery qualifies as a violent crime under the ACCA.

By: Carson Smith

Defendant Contends Possession of a Firearm Conviction and Multiple Sentencing Enhancements.

In United States v. Pineda, the Fourth Circuit upheld the lower court’s conviction and sentencing of the defendant, Jesus Pineda. The Eastern District of North Carolina convicted the defendant on two counts of distribution of cocaine, possession of a firearm in furtherance of drug-trafficking, and possession of a sawed-off shotgun. The district court sentenced the defendant to 132 months in prison. On appeal, the defendant challenged the “possession of a firearm in furtherance of drug-trafficking” conviction as well as several sentencing enhancements which greatly increased the length of his imprisonment. The Court affirmed the possession conviction based on specific statements and actions, involving the handgun, made by the defendant during the cocaine transaction. Furthermore, the Court upheld the sentencing enhancements applied by the district court.

Defendant Convicted for Selling Cocaine and Firearms to Confidential Informant.

On November 30, 2011, a confidential informant (CI) purchased an ounce of cocaine and stolen assault rifle from Raul Sanchez. Sanchez acquired the items earlier in the day from Jesus Pineda and Pineda accompanied Sanchez to the transaction with the CI. Shortly thereafter, Pineda contacted the CI directly and proposed cutting Sanchez out of any future deals. On January 25, 2012, the CI purchased 54 grams of cocaine and a 12-gauge sawed-off shotgun from Pineda. The two had also discussed the purchase of a .380 caliber handgun; however, Pineda, at the meeting, refused to sell the gun. On February 8, 2012, the CI purchased 54 grams of cocaine and the .380 caliber handgun from Pineda. Subsequently, Pineda was arrested, charged, and convicted.

Court upholds “Possession of a Firearm in Furtherance of Drug-Trafficking” Conviction Because Defendant Exposed the Firearm During the Transaction and Emphasized the Firearm’s Necessity.

On appeal, Pineda contended that mere possession of a firearm during a drug transaction does not constitute “possession of a firearm in furtherance of drug-trafficking.” According to 18 U.S.C. § 924(c)(1)(A), the government must present evidence indicating that the possession of a firearm “furthered, advanced, or helped forward a drug trafficking crime.” At trial, it was established that during the January 25, 2012 meeting, Pineda took out the .380 caliber handgun and “placed it underneath his leg while conducting the drug transaction.” The CI asked to buy the gun, but Pineda refused, stating that it was “the only piece” he owned. The Court affirmed the conviction, stating that the evidence was sufficient enough for a reasonable juror to determine that the firearm was critical to Pineda’s drug trafficking activities.

Sentencing Enhancement Involving Hearsay Evidence Upheld Based on the Reliability of the Information.

Pineda also raised several issues challenging the sentencing enhancements applied by the district court. First, Pineda argued that the district court should not have factored the November 30, 2011 meeting into sentencing considerations because the only evidence tying Pineda to the Sanchez-CI purchase were hearsay statements by Sanchez. In sentencing, a district court is allowed to consider information that would otherwise be kept out of trial due to evidentiary rules as long as the information “has a sufficient indicia of reliability to support its probable accuracy.” In reviewing the reliability of information surrounding Pineda’s involvement in the November 30, 2011 transaction, the Court found persuasive the fact that Pineda was present at the transaction. Therefore, the Court determined that the information had a sufficient indicia of reliability.

Sentencing Enhancement Involving Three or More Illegal Transactions Upheld Based on the High Degree of Similarity Between the Transactions.

Second, Pineda argued that the November 30, 2011 transaction was not part of a common scheme or plan as the two subsequent deals because Pineda played a different role in the November 30 transaction and “there was no evidence showing that the three transactions were part of a larger pattern of illegal activity.” In order for the three transactions to be part of a common scheme or plan, it must be shown that they are “substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.” Since Pineda was the seller of the cocaine and firearms in each of the three transactions, the Court held that the transactions had a “relatively high degree of similarity.” Therefore, the Court held that the district court did not err in grouping the three transactions for sentencing purposes.

Court Holds That Double Counting Involving the .380 Caliber Firearm Did Not Occur.

Finally, Pineda argued that the district court improperly double counted his possession of the .380 caliber handgun in applying the sentencing guidelines. Pineda’s sentencing was increased “for committing an offense that involved three or more firearms.” However, Pineda claimed that a statutory limitation prevented the trial court from counting the .380 caliber gun, for sentencing purposes, under both the “possession of a firearm in furtherance of drug-trafficking” conviction and the “three or more firearms” enhancement. “Double counting occurs when a provision of the Guidelines is applied to increase punishment on the basis of a consideration that has been accounted for by application by another Guideline . . . . Double counting is generally authorized unless the Guidelines expressly prohibit it.” The Court determined that the Guidelines did not expressly prohibit double counting and that double counting did not occur in this case. In particular, the Court held that the “in furtherance” conviction pertained to “particular unlawful uses of a firearm,” whereas the “three or more firearms” enhancement pertained to the number of firearms involved. Therefore, this was not an instance of double counting. The Court held that the sentencing enhancements applied by the trial court were proper.

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By:  Steven M. Franklin

Yesterday, in U.S. v. Fikes, the Fourth Circuit affirmed the decision by the District Court for the Middle District of North Carolina to classify Mr. Kevin Fikes, Jr., as an armed career criminal.

What Happened?

Mr. Fikes pleaded guilty to possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The District Court designated Mr. Fikes as an armed career criminal, and thus sentenced him to 180 months in prison.

Is There a Problem?

On appeal, Mr. Fikes contended that the District Court erred in two regards. First, the District Court should not have considered predicate offenses that were neither pleaded in the indictment nor proven to a jury beyond a reasonable doubt to designate him as an armed career criminal. Second, because his predicate offenses were consolidated, the offenses should not have been considered separately to satisfy the armed career criminal enhancement.

No Problem Here, Mr. Fikes

In regard to Mr. Fikes first contention, the Fourth Circuit concluded that the District Court did not err. Even if a conviction is not found by a jury, the fact of a prior conviction nonetheless remains a valid enhancement. The Fourth Circuit also concluded that the District Court did not err in regard to Mr. Fikes’ second contention because predicate offenses do not need to be tried or sentenced separately to be considered “separate offenses” under the armed career criminal enhancement.

The Fourth Circuit Affirms

For these reasons, the Fourth Circuit affirmed the District Court’s decision to classify Mr. Fikes as an armed career criminal.

by David Darr

Today, in United States v. Moore, the Fourth Circuit affirmed the District of Maryland’s judgment finding the Defendant guilty of drug trafficking, possession of a firearm in furtherance of drug trafficking, and possession of a firearm by a felon. The defendant, Corey A. Moore, appealed his conviction based on the District Court’s denial of his motion to suppress evidence of a police officer’s stop and the District Court’s finding that his possession of a firearm was “in furtherance of a drug trafficking crime.”

On September 25, 2010, an officer observed Moore walking down the street carrying a green bottle. Thinking this bottle might be alcohol, the officer initiated a stop and Moore took off running. The officer and two bystanders observed Moore toss a package in the dumpster. That package contained a half kilogram of cocaine, worth over $10,000. Moore was then arrested. Two days later, there was an attempted break-in at an apartment rented by Moore. Upon discovering Moore resided in the apartment (he had given them a different address when he was arrested), the police obtained a search warrant. In the apartment, the police found 2.8 kilograms of PCP, drug distributing materials with traces of cocaine on them, $45,000 in cash, and two handguns. Moore was charged with possession with intent to distribute cocaine and PCP, possession firearms in the furtherance of drug trafficking, and possession of firearms by a felon. Before closing arguments, the defense moved to suppress all tangible evidence on the grounds that the officer did not have a reasonable suspicion to stop Moore in the first place. The District Court denied the motion on the grounds that the defense had waived the right to suppress evidence by not raising it before the trial as required by the Federal Rules of Civil Procedure. The court then found Moore guilty on all counts and sentenced Moore to 271 months in prison. Moore raised two issues on appeal; the District Court’s denial of his motion to suppress evidence and the District Court’s finding that Moore possessed firearms “in furtherance of drug trafficking.”

Moore first claimed that the District Court did not decide that he waived his right to a motion to suppress evidence, but instead found on the merits of his motion that no Fourth Amendment violation had occurred. Alternatively, Moore claimed that he qualified for a “good cause” exception to the waiver rule because he learned new evidence at the trial. The Federal Rules of Criminal Procedure require parties to raise motions to suppress evidence before trial, unless the court grants relief for a good cause. This rule is not merely procedural and it is an important rule due to fairness considerations. The rule helps parties to know what evidence to base their case on before the trial. The rule also prevents from unnecessary delays in the trial that may inconvenience the jury. The Fourth Circuit ruled that despite that the District Court briefly brought up the merits of Moore’s motion when it decided the issue was waived, the court was very clear that it was deciding that the issue was waived. The Fourth Circuit decided that the District Court waived the motion instead of deciding the issue on its merits. The Fourth Circuit also decided that new information is not sufficient good cause because new information is learned all the time at trial. It does not change that the evidence could have been challenged before the trial. Because the District Court properly and correctly decided the issue was waived and that there was no good cause for the motion coming late, the Fourth Circuit affirmed the District Court’s decision to deny the motion to suppress evidence.

Moore next claimed that the firearms found in his apartment with the drugs were insufficient evidence that the firearms were used in the furtherance of drug trafficking. The Fourth Circuit reviewed this issue on a clearly erroneous standard because the nexus between the firearms and the drug trafficking crime is a factual question. The Fourth Circuit found plenty of evidence in the record supporting a close nexus between the firearms and drugs. The cash and amount of drugs found with the firearms suggested that Moore was dealing the drugs. Further, Moore did not challenge his conviction on the drug trafficking charges. The firearms being beside Moore’s bed was evidence that Moore used the firearms for protection of the drugs. Another factor that the Fourth Circuit considered was that Moore was not allowed to legally own firearms in the first place as a convicted felon. The Fourth Circuit affirmed the District Courts conviction on this count because it was completely reasonable for the court to find the firearms were in the furtherance of drug trafficking. Ultimately, the Fourth Circuit affirmed Moore’s conviction on all counts.

 By: Kaitlin Price

The Fourth Circuit, in United States of America v. Moody, affirmed the District Court’s 110-month sentence imposed in accordance with Defendant’s guilty plea to possession of a firearm by a convicted felon. The Fourth Circuit held that the District Court properly applied the U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B)(2013).

The Court explained that the Sentencing Guidelines allow a court to enhance a sentence under USSG § 2K2.1(b)(6)(B) when the possession of a firearm has the potential of facilitating another felony offense. This requirement for enhancement is satisfied “‘if the firearm had some purpose or effect with respect to the other offense,’” even if that purpose is protection. The commentary to the Sentencing Guidelines specifically explain that if a firearm is found within the proximity of drugs, then the enhancement requirement is satisfied because a firearm would have the potential to facilitate a drug-trafficking felony offense.

The record in United State of America v. Moody indicates that the firearm found satisfies the enhancement requirement and thus the 110-month sentence is affirmed. There was sufficient evidence of temporal proximity of possession of the firearms and the illegal activity because the evidence showed that the Defendant had purchased the gun a few days prior to when the police obtained it and the Defendant had conducted a drug sale the day before the police found the fire arm. Further, the argument that the Defendant possessed the gun for protection is not a valid defense in light of the fact the Defendant was a drug trafficker. The firearm and marijuana were located in the same closet in the Defendant’s residence. The Court concluded this fact further strengthened the nexus between the Defendant’s firearm possession and drug activity because the presence of the firearm empowered the Defendant to use his residence for drug trafficking by offering him protection.

By Alina Buccella

In a case published today by the Fourth Circuit, the court reviewed the appeals of two brothers, Jimmy and Janson Strayhorn, found guilty of armed robbery under the Hobbs Act and for brandishing a firearm in furtherance of a crime. The Hobbs Act requires that the robbery have an effect on interstate commerce. Because the brothers were accused of robbing a P & S Coin, and for conspiring to rob an All American Coins, their robbery and conspirary affected interstate commerce. The brothers were also charged with brandishing a firearm in furtherance of a crime in violation of 18 U.S.C. 924(c)(1). The elements of this offense require a showing that the defendants used or carried a firearm in relation to a crime of violence.

Janson Strayhorn appealed his guilty verdict by arguing that the state had insufficient evidence on which to base his verdict. The Fourth Circuit agreed in regards to his conviction for robbing the P & S Coin, but upheld his conviction for conspiracy to rob the All American Coins. The only basis on which the state had to convict Janson for the P & S robbery was a partial fingerprint on the duct tape used to gag the storeowner. An expert for the state testified that the partial fingerprint could have been placed there up to a year before the robbery. The court said that the “probative value of an accused’s fingerprints upon a readily movable object is highly questionable, unless it can be shown that such prints could have been impressed only during the commission of the crime,” and that it would be insufficient evidence on which to permit a jury to find Janson guilty beyond a reasonable doubt. The court went further and enunciated a rule for future cases relying on a fingerprint on a movable object: “in the absence of evidence regarding when the fingerprints were made, the government must marshal sufficient additional incriminating evidence so as to allow a rational juror to find guild beyond a reasonable doubt.” This burden could be met with sufficiently incriminating circumstantial evidence.

In Janson’s case, there was one piece of evidence that could have been sufficiently incriminating – the fact that he was stopped by police while in possession the Colt Peacemaker that was stolen from P & S Coin during the robbery. While the unexplained possession of a stolen weapon can lead to the conclusion of guilt, the court found that the time between the robbery and Janson’s arrest, two months, was too tenuous to make such an inferential leap. Thus, the court reversed the trial court’s denial of Janson’s motion for summary judgment of acquittal on the P & S Coin robbery conviction.

However, Janson had no such luck in his charge of conspiracy to violate the Hobbs Act or 18 U.S.C. 924(c)(1). There was sufficient evidence on record that showed multiple phone calls between Jimmy and Janson planning to rob the All American Coins and to use the Colt Peacemaker to do so (read: irony). Janson was also stopped by police outside of the All American Coins, in the car described during the phone calls, with the Colt Peacemaker in the backseat. Thus the court upheld these convictions against Janson Strayhorn.

Jimmy Strayhorn was able to successfully appeal the sentence he received for his conviction for brandishing a firearm in furtherance of a crime because the trial court failed to instruct the jury that a finding that Jimmy “brandished,” as opposed to “used” or “carried,” the gun would raise the mandatory minimum sentence of his conviction. This is a new rule coming from the Supreme Court in Alleyne v. United States, 133 S. Ct. 2151 (2013), and was not in effect during Jimmy’s trial. However, because this case came out during Jimmy’s pending appeal, the Fourth Circuit was required to take note of the new rule and apply it to his case. Lucky Jimmy.