Wake Forest Law Review

By Mickey Herman

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

Facts & Procedural History

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

Waiver 

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

Breach of Plea Agreement

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

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

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

Conclusion

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

By Kelsey Mellan

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

Facts & Procedural History

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

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

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

Procedural Unreasonableness

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

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

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

 Substantive Unreasonableness

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

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

Disposition

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

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.

 

 

By Kelsey Mellan

On January 26, 2017, the Fourth Circuit issued a published opinion in United States v. Moreno-Tapia, a constitutional appeal of an immigration removal and sentencing order. Juan Moreno-Tapia (“Moreno-Tapia”) argued he was unconstitutionally deported in 2009 and thus his conviction for illegal reentry into the United States in 2014 was also unconstitutional. The Supreme Court case in which Moreno-Tapia based his constitutional argument on was decided in 2010. The Fourth Circuit determined that this particular case does not apply retroactively. Therefore, the Fourth Circuit affirmed the district court’s denial of Moreno-Tapia’s motion to vacate his removal order and sentencing determination.

Facts & Procedural History

Moreno-Tapia immigrated to the US from Mexico when he was a child. While he applied for legal permanent residency, the process never advanced due to his eventual removal from the US. In 2006, Moreno-Tapia was charged in a North Carolina court with three counts of felony indecent liberties with a child. At the time of his plea, Moreno-Tapia was aware that he would have to register as a sex offender. However, he claimed his attorney did not inform him that he would be subject to deportation because of his convictions. Shortly after Moreno-Tapia was released from prison in 2009 for these charges, he was deported to Mexico pursuant to a removal order from the Department of Homeland Security. Between 2009 and 2011, Moreno-Tapia reentered the US without permission and returned to North Carolina. He failed to register as a sex offender, despite his convictions for a qualifying sex offense. He was subsequently arrested for an unrelated crime. Because of that arrest, the authorities became aware of his current illegal presence in the US.

In June 2014, Moreno-Tapia was indicted in the Middle District of North Carolina on the charges of illegal reentry by a removed alien and failure to register as a sex offender. Moreno-Tapia pleaded guilty to the illegal reentry charge, and the government agreed to dismissal of the failure to register charge. After these proceedings, Moreno-Tapia returned to North Carolina court and filed a Motion for Appropriate Relief (“MAR”) seeking to vacate his state indecent liberties convictions. He relied on Padilla v. Kentucky to argue that his convictions should be set aside because his lawyer’s failed to inform him of the immigration consequences of his guilty plea – so the plea was not knowing and voluntary. The North Carolina court agreed and vacated his indecent liberties convictions.

Moreno-Tapia then returned to the district court to challenge the removal order on which his illegal reentry charge was based, pursuant to the North Carolina state court decision. He moved to vacate the 2009 removal order and to dismiss both counts of the indictment against him – illegal reentry and failure to register. The district court denied all of Moreno-Tapia’s motions. In September 2015, the district court held a sentencing hearing on the illegal reentry charge using the vacated indecent liberties convictions as the basis for his offense level under the federal Sentencing Guidelines. He was eventually sentenced to 27 months’ imprisonment. This timely appeal follows.

Motion to Vacate the Removal Order

The core issue in this case was whether Moreno-Tapia’s removal order should be vacated, without which he may not be convicted of illegal reentry. Moreno-Tapia’s main argument was that because his lawyer failed to inform him of the immigration consequences of his guilty plea to the indecent liberties charge, the subsequent removal order and reentry charges are unconstitutional. As previously mentioned, he relied on Padilla for the proposition that without this information, the North Carolina state court rightly overturned the original conviction.

However, the Fourth Circuit determined lawyers have no duty to advise aliens of potential legal infirmities in prior criminal proceedings. Thus, his state convictions were constitutionally infirm. However, Moreno-Tapia pleaded guilty in the 2006 case, which was 4 years before the Supreme Court’s decision in Padilla. Because the Supreme Court subsequently decided in Chaidez v. United States that Padilla does not apply retroactively, any failure by Moreno-Tapia’s lawyer to warn him of the possible immigration consequences of his guilty plea would not render Moreno-Tapia’s convictions constitutionally unsound.

That the state MAR court vacated Moreno-Tapia’s convictions under Padilla did not change the Fourth Circuit’s analysis because the state court erroneously applied Padilla retroactively. Thus, there was no federal constitutional violation on which Moreno-Tapia could have based his argument here.

Motion to Vacate the Sentencing Determination

The Sentencing Guidelines on which Moreno-Tapia’s 27-month sentence was based provides for sentence enhancements based on specific offense characteristics. The relevant guideline here, § 2L1.2, imposes an enhancement to the offense level of a defendant who “previously was deported after a conviction for a crime of violence.” Moreno-Tapia argues that because his convictions were vacated after his removal and illegal reentry, they should not have been taken into account at sentencing. In United States v. Moran-Rosario, this court held that eh relevant time for determining whether a prior conviction qualifies for enhancement under § 2L1.2 is the date of the defendant’s deportation and not the date of the subsequent illegal reentry charge or sentencing. Moreno-Tapia argued there should be an exception to this rule if the prior conviction was vacated as a result of a constitutional infirmity, egregious error of law, or determination of innocence. However, the Fourth Circuit determined it had no occasion to decide on this issue in this case. As previously mentioned, because Padilla does not apply retroactively, Moreno-Tapia’s state convictions were constitutionally obtained.

Disposition

Therefore, the Fourth Circuit affirmed the district court’s denial of Moreno-Tapia’s motion to vacate both the removal order and sentencing determination.

 

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By Daniel Stratton

On February 19, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Berry, vacating a sex offender’s thirty-three month sentence for failing to register on the grounds that it was procedurally unreasonable. The Fourth Circuit found that the defendant, Brian Berry, had been incorrectly categorized as a tier III offender under the U.S. Sentencing Guidelines and remanded the case to the U.S. District Court for the Eastern District of North Carolina for resentencing under the appropriate standard.

Berry is Released From Prison, Fails to Register as a Sex Offender

In 2002, Berry pleaded guilty in New Jersey to endangering the welfare of a child in violation of New Jersey state law, after engaging in inappropriate sexual conduct with a five-year-old victim. Upon his release from prison, Berry was required to register under the federal Sex Offender Registration and Notification Act (SORNA).

After initially registering, law enforcement discovered in 2013 that Berry no longer lived at his listed address in New Brunswick, New Jersey. SORNA requires a sex offender to update their registration upon every change of residence. Subsequently, New Jersey issued a warrant for Berry’s arrest for violating parole. He was found in North Carolina, where he pleaded guilty to one count of failing to register as a sex offender in violation of 18 U.S.C. § 2250.

SORNA classifies sex offenders into three tiers depending on the nature of the underlying sex offense.  More serious sex offenses are classified under the second and third tiers, while tier I is a catch-all for all others. The U.S. Sentencing Guidelines assign a base sentence depending on the tier. Under SORNA’s definition, an offender who engages in abusive sexual contact against a minor who is under thirteen years old falls under tier III. The district court determined that Berry was a tier III sex offender under SORNA and used that determination to calculate a sentencing range of thirty-three to forty-one months. He was ultimately sentenced to thirty-three months in prison, followed by five years of probation. Berry appealed his sentence, arguing that the district court classified him in the incorrect tier.

How SORNA’s Tier Classification System Works

To determine a sex offender’s tier classification, a court will compare the underlying sex offense with those listed in each of the tiers’ definitions. Generally, courts have adopted two frameworks for analyzing which tier an offender should be placed in. The first is the categorical approach, which compares the elements of the prior offense with the elements of the “generic” offense of that tier as defined in SORNA. If the elements of the prior offense “are the same as, or narrower than” the elements of the generic offense, then the offender is classified in that tier. If the statute encompasses broader conduct, which could fall outside of the offense enumerated in the federal statute, then the prior offense is not a match. Some jurisdictions also apply a modified categorical approach, which allows the categorical approach to be used where the prior conviction is for violating a “divisible statute.” A divisible statute is one that sets out one or more elements in the alternative. This approach allows courts to consult a limited number of court documents to determine which alternative formed the basis of the prior conviction.

The second approach is known as the circumstance-specific approach. It focuses on the circumstances underlying the prior offense. Under that approach, the court does not focus on the elements of the prior offense, and instead looks at whether it involved conduct or circumstances required by SORNA.

The Fourth Circuit Adopts the Tenth Circuit’s Hybrid Approach to Applying Tier III When Involving Minors

Noting that the Tenth Circuit recently concluded that “Congress intended courts to look to the actual age of the defendant’s victim, but to otherwise employ a [categorical] approach,” the Fourth Circuit adopted a similar view. The Fourth Circuit explained that when a statute makes reference to a generic offense, it is evidence that Congress intended a categorical approach to applying the statute. It also noted that when a statute refers to specific conduct or circumstances, it was evidence of Congress’s intent to apply a circumstance-specific approach.

The Fourth Circuit explained that SORNA’s use of generic offenses in its text indicated that a categorical approach should be used when analyzing a prior offense.  However, the element specifying a victim be under the age of thirteen indicated that the court should consider the specific circumstances of a victim’s age, rather than mechanically apply the categorical approach. Based on this, the Fourth Circuit concluded that it should apply a categorical approach to sex offender tier classification, with a limited-purpose circumstance-specific comparison for determining the victim’s age.

The Fourth Circuit Applies the Categorical Approach to Berry; Holds that He Was Improperly Classified

Applying the categorical approach to Berry’s case, the court looked at the New Jersey statute under which Berry was convicted.  The New Jersey Supreme Court interpreted the statute as to not require actual or attempted physical contact in order to be convicted of child endangerment. As a result, the statute could encompass conduct much broader than what fell within the generic elements of tier III. The Fourth Circuit found this to mean that the elements of the underlying statute were not “comparable to or more severe than” the elements of the generic tier III offense. This, the court concluded, meant that Berry could not be properly classified as a tier III offender. As a result, Berry’s sentence was improperly calculated using a higher base offense level, making Berry’s sentence procedurally unreasonable.

Berry’s Case is Sent Back to the District Court for Resentencing

After finding Berry’s sentence procedurally unreasonable, the court vacated the sentence and remanded the case back to district court. On remand, the Fourth Circuit instructed the district court to determine the appropriate tier level, calculate the new sentencing range, and impose a new sentence.

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By Sarah Walton

On December 21, 2015, the Fourth Circuit issued a published opinion in the criminal case of United States v. Barlow. The Fourth Circuit affirmed the district court’s holding in part, reversed in part, and remanded the case for resentencing.

The District Court Enhances Barlow’s Sentence Based on Status as Armed Career Criminal

Defendant Camden Barlow (“Barlow”) was indicted on May 27, 2014 on the charge of possession of a firearm after committing three violent state felonies. Barlow was indicted based on convictions of two counts of felony speeding to elude arrest and two counts of felony breaking and entering. Barlow pled guilty and received an enhanced fifteen-year sentence after the district court classified him as an armed career criminal under the Armed Career Criminal Act (“ACCA”).

At sentencing, Barlow argued that his prior convictions did not classify him as an armed career criminal and contended that none of these convictions constituted felonies. The district court rejected both of Barlow’s arguments and applied the armed career criminal sentencing enhancement, which resulted in a 180-month sentence of imprisonment. Barlow appealed on the grounds that (1) his convictions for speeding to elude arrest were not felonies that qualified as violent under the ACCA and (2) his prior convictions for speeding to elude arrest and breaking and entering did not constitute felonies and, as a result, he could not be classified as a felon in possession of a firearm.

Barlow’s Convictions for Speeding to Elude Arrest No Longer Qualify as Felonies Under the ACCA

First, Barlow argued that his conviction for speeding to elude arrest did not qualify under the ACCA as a felony. The Fourth Circuit found that this crime was not on the ACCA’s list of crimes that qualified for a sentencing enhancement. The Fourth Circuit reasoned that if the crime was not listed in the ACCA, it must fall within the ACCA’s residual clause. A crime falls in the residual clause when it “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

However, after Barlow’s conviction, the Supreme Court invalidated the ACCA’s residual clause in Johnson v. United States, holding that the clause was unconstitutionally vague. As a result, the Fourth Circuit reasoned that because Barlow’s felonies for speeding to elude arrest were no longer valid under the ACCA, the case must be remanded for resentencing.

Barlow’s Previous Convictions Qualify as Felonies 

Next, Barlow argued that his prior convictions did not constitute felonies and therefore he could not be considered a felon in possession of a firearm under 19 U.S.C. § 922(g).  A prior felony conviction in which a defendant’s sentence is punishable by imprisonment that exceeds one year qualifies as a felony under United States v. Simmons.

To determine if Barlow faced a prison term that exceeded one year, the Fourth Circuit looked to North Carolina’s Justice Reinvestment Act (“NCJRA”), which was enacted in 2011 and revised many of the sentencing regimes in North Carolina. NCJRA requires that nine months prior to the expiration of a prison term, individuals with felony convictions enter into a mandatory post-release supervision period. NCJRA also extended many of the minimum sentence requirements for felonies, including those committed by Barlow. Under the old sentencing structure, Barlow’s maximum term of imprisonment would have been ten months. However, under the NCJRA, Barlow’s maximum term of imprisonment was nineteen months.

Barlow argued that because the NCJRA mandated a period of post-release supervision nine months prior to the expiration of the maximum sentence, his sentence would not have exceeded one year. However, the Fourth Circuit reasoned that the NCJRA’s language indicated that post-release supervision was part of the term of imprisonment. As a result, the Fourth Circuit affirmed the district court’s decision on this point.

The Fourth Circuit Affirms in Part, Reverses in Part, and Remands for Resentencing

The Fourth Circuit affirmed the district court’s holding on the classification of Barlow’s felonies under 922(g), but reversed on the issue of Barlow’s classification as an armed career criminal and remanded for resentencing.

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By Mikhail Petrov

Today, in the published criminal case of United States v. Qazah, the Fourth Circuit affirmed the Defendants’ convictions, but vacated their sentences and remanded the case back for resentencing. The Defendants, Kamal Qazah, better known by his street name Keemo, and his uncle Nasser Alquza, were convicted for a conspiracy to receive and transport stolen cigarettes in interstate commerce as well as money laundering. Two issues were before the Fourth Circuit. The first issue was whether undercover law enforcement agents had a proper warrant. The second issue was in the calculation of the Defendants’ sentences using the Sentencing Guidelines. The Fourth Circuit affirmed the district court’s decision to dismiss the Defendants’ motion to suppress evidence but vacated the Defendants’ sentences and remanded for resentencing.

A Business Deal Too Good…

In 2010 and 2011, Qazah, in conspiracy with others, purchased thousands of cases of purportedly stolen Marlboro brand cigarettes manufactured by Phillip Morris. Qazah didn’t know that he was actually buying Marlboros from undercover law enforcement officers. Qazah made big money by selling the purportedly stolen cigarettes, on which state taxes had not been paid, to convenience stores in South Carolina. Qazah even brought his uncle, Nasser Alquza, into the business.

In November 2011, the undercover officers arranged the final controlled purchase, agreeing to deliver 1,377 cases of cigarettes to a warehouse owned by Alquza for $1.8 million. Instead of completing that transaction, however, law enforcement officers arrested Qazah and Alquza at Qazah’s house, where they also executed a search warrant and recovered, among other things, $1.3 million in cash and a notebook in which Qazah had recorded his cigarette sales to various retailers. That same day, officers executed another search warrant at Alquza’s house, recovering relevant financial records and false identification documents.

The problem arose with the warrant used by the undercover agents.  The warrant used to search Alquza’s house had an attachment, Attachment B, which was prepared in connection with Qazah’s warrant. Thus, Attachment B that the undercover agents intended to include for Alquza’s house should have specified documents relating to “Nasser ALQUZA” in paragraph one, rather than those relating to “Kamal QAZAH.” The warrant had previously been emailed to the magistrate judge, with Attachment B in its proper place. When it was presented to the judge for her signature, Attachment B was with the wrong warrant.

The Procedural History – The Deficient Warrant and The Sentencing Guidelines

Alquza had filed a motion to suppress the evidence seized during the search on the grounds that the warrant was incorrect. Following a hearing, the district court denied the motion to suppress, finding that the incorrect attachment was a clerical error. The district court concluded that the evidence recovered in the search was admissible under the good-faith exception to the exclusionary rule recognized in United States v. Leon, 468 U.S. 897 (1984).

With the motion to suppress denied, the presentencing report for Qazah recommended that he be held responsible for 8,112.66 cases of cigarettes, with a retail value of $24,337,980, and Alquza for 2,909.66 cases, with a retail value of $8,728,980. Based on those loss amounts, the reports applied a 22-level enhancement to Qazah’s offense level, pursuant to U.S.S.G. § 2B1.1(b)(1)(L) (2012), and a 20-level enhancement to Alquza’s offense level, pursuant to U.S.S.G. § 2B1.1(b)(1)(K) (2012). In coming up with the dollar amounts of the “stolen” cigarettes, the district court valued the retail price of the cigarettes at $3,000 per case, as distinct from the wholesale value of $2,126 per case.

The Deficient Warrant

Alquza first contends that the district court erred in denying his motion to suppress the evidence seized from his house. The district court found that the error here was a technical one, and did not influence the warrant’s issuance, nor adversely affect its execution. Alquza contended that the warrant did not satisfy the Fourth Amendment’s particularity requirement.

The Fourth Circuit found that the good-faith exception, as explained by the district court, applied to the deficient warrant. In this case, the magistrate judge had seen the correct warrant on her email, even though she signed the one with Attachment B. The Leon Court held that, the exclusionary rule should not be applied to bar the government from introducing evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even though the warrant was ultimately found to be deficient.

Thus, the Fourth Circuit concluded that the magistrate did not wholly abandon her judicial role in issuing the warrant. See Leon, 468 U.S. at 923. Nor did she “merely rubber stamp the warrant.” United States v. Gary, 528 F.3d 324, 329 (4th Cir. 2008). To the contrary, the magistrate judge examined the email version of the proposed warrant, which was the correct version, before deciding to sign it, although she unwittingly signed an incorrect version. Alquza does not challenge the correct version that was considered by the judge.

Most importantly, the Fourth Circuit found that the suppression of evidence recovered in this case would have almost no deterrent effect because the officers were acting in good faith. The Supreme Court has repeatedly explained that the exclusionary rule’s “sole purpose . . . is to deter future Fourth Amendment violations” and that exclusion is appropriate only when “the deterrence benefits of suppression . . . outweigh its heavy costs.” Davis v. United States, 131 S. Ct. 2419, 2426-27 (2011). Thus, the decision of the district court on the warrant was affirmed.

District Court Erred in Applying the Sentencing Guidelines  

The Defendants appeal the decision to use the retail value of the cigarettes rather than their wholesale value in evaluating their sentencing range under the Sentencing Guidelines. In rejecting the wholesale value of the cigarettes as the appropriate measure of loss, the district court relied on U.S.S.G. § 2B1.1(b)(1) and Application Note 3(A) to conclude that it should apply the “greatest intended loss” as between the wholesale and retail value of the cigarettes, regardless of whether that value in fact represented a loss.

In the version of the Sentencing Guidelines used in sentencing the Defendants, the Application Notes explain that the “intended loss” is determined by “the pecuniary harm that was intended to result from the offense.” Thus, as the Fourth Circuit has observed before, “the general rule is that loss is determined by measuring the harm to the victim” of the offense committed. United States v. Ruhe, 191 F.3d 376, 391 (4th Cir. 1999).

The victim, of course, is determined by the nature of the offense and the impact of its violation. In this case, the Defendants were told–and they believed–that they were receiving cigarettes stolen from Philip Morris trucks in either Virginia or Tennessee.

Thus, for the purpose of determining the loss that was intended to result from the offense, the court must identify and focus on the intended victim or victims of the offense of receiving and selling stolen property. Had the cigarettes actually been stolen, the most obvious victim would have been the property’s true owner, which the Defendants believed to be Philip Morris, the cigarettes’ manufacturer. This makes Philip Morris the most obvious intended victim of the conspiracy offense. Philip Morris’ loss would have been the amount of money that it would have otherwise received for selling the purportedly stolen cigarettes, a figure that the record indicates was an average of $2,126 per case.

Still, the Fourth Circuit held that the question about the identity of the intended victim and its losses are a question of fact for the district court to resolve. However, the district court in this case appeared to conclude, without making any such inquiries, that the cigarettes’ retail market value was the appropriate measure of loss simply because the Guidelines required it to apply the “greater intended loss,” and the cigarettes’ retail value was greater than their wholesale value. Thus, the sentence is vacated and remanded back to the district court for a determination of the victim and the proper amount that is lost or taken away from the victim.

Holding of The Fourth Circuit

The Fourth Circuit affirmed the district court’s decision to deny the motion to suppress but vacated the Defendants’ sentences and remanded back for resentencing while allowing the district court to expand its inquiry into the intended victim or victims of the relevant offenses and to recalculate the Defendants’ sentencing ranges based on its findings and conclusions about the amount of loss that they intended to result from their commission of the offense.

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By Mikhail Petrov

On July 23, 2015, in the criminal case of United States v. Parral-Dominguez, the Fourth Circuit issued a published opinion vacating the sentence of foreign national Edgar Parral-Dominguez (“Dominguez”) and remanding the case back to the district court. This case examined whether Edgar Parral-Dominguez, a Mexican citizen, was properly subject to a sentencing guidelines enhancement. After Dominguez plead guilty to illegally reentering the country, the district court applied the enhancement because, in its view, Dominguez’s previous conviction in North Carolina for discharging a firearm into an occupied building is a requisite “crime of violence.” The Fourth Circuit found this decision was in error.

The Facts

In 2000, at the age of 14, Edgar Parral-Dominguez left Mexico with his father and entered the United States. Although his father went back, Dominguez remained. On New Year’s Day, a firearm was discharged toward a woman’s residence in Winston-Salem, North Carolina. A year later, Dominguez was arrested and charged for the incident. He was convicted for an aggravated felony–discharging a firearm into a building under N.C.G.S.A. § 14-34.1(a) (“the State Offense”).

During his post-arrest processing, state authorities found that Dominguez was unlawfully present in the country. Thus, after he plead guilty to the State Offense he was deported to Mexico. Within months, however, Dominguez returned to North Carolina, and settled in Wilmington.

Three years after his deportation, Dominguez was arrested with more than an ounce of cocaine. He was convicted for trafficking and state authorities again discovered that Dominguez was previously deported and was unlawfully present in the country. In December 2013, a federal grand jury sitting in the Eastern District of North Carolina indicted Dominguez under 8 U.S.C. §§ 1326(a) for illegally reentering the United States after being convicted of an aggravated felony.

Before Dominguez’s sentencing, U.S. Probation prepared a presentence investigation report (PSR), which found that Dominguez was a Category IV criminal, that his base offense level was eight, and that he earned a three-point reduction for accepting responsibility. The PSR then proposed a sixteen-level enhancement to Dominguez’s offense level for having been previously convicted of a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Applying this enhancement, the PSR calculated an offense level of twenty one, resulting in fifty-seven to seventy-one months of imprisonment. Dominguez argued that, as a matter of law, the State Offense did not constitute the requisite crime of violence under § 2L1.2(b)(1)(A)(ii).

The district court overruled Dominguez’s objection after concluding that the occupant of a building would feel threatened by the physical force when a defendant shoots at the building. The court then imposed a sixty-five month sentence. The day after sentencing, the district court issued a nine-page memorandum opinion which argued, without binding precedent, that Dominguez’s offense was a crime of violence as anyone would be inherently threatened if their building was shot at. Dominguez appealed.

The Rule of the Case

This appeal centers on whether the state offense of discharging a firearm into an occupied building under N.C.G.S.A. § 14-34.1(a) constitutes a crime of violence for federal sentencing purposes under U.S.S.G. § 2L1.2. The Fourth Circuit first compared the contours of a “crime of violence” under § 2L1.2 with the breadth of conduct proscribed by N.C.G.S.A. § 14-34.1(a). The court applied the so called “categorical approach” set forth in Taylor v. United States, 495 U.S. 575 (1990) (finding that the elements of a statute, not the actual conduct, dictate its interpretation for sentencing purposes). Under the Taylor approach, the court considers only the elements of the statute of conviction rather than the defendant’s conduct underlying the offense.

Reasoning of the Fourth Circuit

Section 2L1.2 states that a 16-level enhancement applies if “the defendant previously was deported . . . after . . . a conviction for a felony that is . . . a crime of violence.” Although the text of § 2L1.2 does not expressly define the phrase “crime of violence,” the application note clarifies that the phrase contemplates any offense under federal, state, or local law that has, as an element, the use, attempted use, or threatened use of physical force against a person. The so-called “use-of-force clause” was the sole basis with which the Government argued that the State Offense is a crime of violence under § 2L1.2. Still, the use of force clause is limited because first, the plain language of the clause does not encompass acts involving the use of force against property. Second, unlike other sections of the Guidelines, the use-of-force clause does not include “acts that merely pose a risk of harm to another person.”

Although not listed as an element in the statute, the Supreme Court of North Carolina has read a knowledge element into the State Offense which requires the defendant to have had “reasonable grounds to believe that the building might be occupied by one or more persons.” Thus, the State Offense does not require that an offender use, attempt to use, or threaten to use force against another person. Instead, the crime is complete when a person (1) intentionally (2) discharges a firearm (3) toward an occupied building (4) when the shooter knows or has reasonable grounds to believe that the building might be occupied. Therefore, the State Offense cannot be construed as a crime of violence under § 2L1.2’s use-of-force clause and the district court committed procedural error by concluding that Dominguez’s offense under the State Offense is a crime of violence.

Finally, the Fourth Circuit reasoned that the error was not harmless. While in many cases, a judge is unequivocal about what effect any Guidelines miscalculation would have on the ultimate sentence, no such words exist here. It is not clear that Dominguez’s sentencing was unaffected by the court’s error. The Fourth Circuit, looking at the amount of time devoted to calculating the sentence, reasoned that the Guidelines played a large role in the sixty-five month sentence.

Holding

The Fourth Circuit vacated and remanded Dominguez’s sixty-five month sentence. The court held that the State Offense is not a crime of violence, and thus that the district court committed procedural error. Additionally, the procedural error was not harmless. The dissent by Circuit Judge Wilkinson argues that the decision should be upheld because the State Offense is not a crime against property, but a crime against people who occupy the property and is therefore a crime of violence.

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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.

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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 Sarah Walton

On May 14, 2015, the Fourth Circuit issued a published opinion in the criminal case of United States v. Bercian-Flores. The court held that the defendant’s prior conviction of transporting illegal aliens was punishable “by imprisonment for a term exceeding one year” and therefore qualified as an aggravating felony under Federal Sentencing Guideline § 2L1.2(b)(1)(A)(vii) (“USSG”). As a result, the Fourth Circuit upheld the district court’s twelve-point enhancement of the defendant’s sentence.

The District Court Denied Bercian-Flores’ Objection to the Twelve-Point Enhancement

In 1997, Defendant Jose Bercian-Flores (“Bercian-Flores”) pled guilty in the United States District Court for the Southern District of Texas (“Texas Court”) to transportation of an illegal alien pursuant to 8 U.S.C. § 1324(a)(1)(A)(ii). The statutory maximum for this offense was five years imprisonment, but the USSG calculated confinement between zero and six months. The Texas Court sentenced Bercian-Flores to 107 days’ imprisonment and he was subsequently removed to El Salvador in August 1997.

In May 2012, Bercian-Flores was charged in Mecklenburg County, North Carolina with Reentry of a Removed Alien under 8 U.S.C. § 1326. He subsequently pled guilty. The initial presentence report, in accordance with the USSG, suggested an eight-level sentencing enhancement due to Bercian-Flores’ aggravating felony offense of transporting illegal aliens. An aggravating felony offense is punishable by more than one year in prison.

Bercian-Flores objected to the presentence report. He argued that his prior offense did not qualify as an felony because his sentence did not exceed one year. The district court overruled the objection, stating that the statutory maximum of five years, rather than the USSG, controlled the inquiry. As a result, the district court held that Bercian-Flores’ prior offense was an aggravating felony, thereby warranting a twelve-point sentencing enhancement.

            Bercian-Flores’ Argued that the District Court Erred Because the USSG, Rather than the Statutory Maximum, Controlled the Texas Court’s Decision in 1997

On appeal, Bercian-Flores argued that under United States v. Simmons, the statutory maximum was not controlling because the USSG guidelines in 1997 (“1997 Guidelines”) were mandatory, rather than advisory. Bercian-Flores further contended that because the Texas Court was obligated under the 1997 Guidelines to sentence him to less than one year in prison, his offense did not qualify as a felony. Thus, the question before the Fourth Circuit was whether the Texas Court was completely bound by the 1997 Guidelines, thereby leaving the court with no discretion to impose a sentence that would qualify as a felony.

The Fourth Circuit Rejected Bercian-Flores’ Argument

The Fourth Circuit recognized that judges could depart from the 1997 Guidelines in very limited circumstances. Bercian-Flores likened the 1997 Guidelines to the North Carolina Structured Sentencing Act, which did not allow judges to depart from the recommendation set forth in the Act under any circumstances. The Fourth Circuit rejected Bercian-Flores’ argument for two reasons. First, the court was bound by the Supreme Court’s decision in United States v. Rodriquez. In Rodriquez, the Court held that statutory law, rather than the USSG, determined the maximum sentence for imprisonment. Second, the Fourth Circuit reasoned that unlike the North Carolina Structured Sentencing Act, judges could, in certain circumstances, depart from the 1997 Guidelines. As a result, the court held that the statutory maximum of five years, rather than the USSG, determined whether Bercian-Flores’ prior offense qualified as a felony.

The Fourth Circuit Affirmed the District Court’s Holding

The Fourth Circuit affirmed the district court’s holding that Bercian-Flores’ prior offense should be measured by statutory guidelines and was therefore punishable by “imprisonment exceeding one year.” As a result, Bercian-Flores’ prior offense constituted an aggravating felony, thereby warranting a twelve-point sentencing enhancement.

By Taylor Ey

On April 15, 2015, the Fourth Circuit issued its published opinion in United States v. Flores-Granados.  The appellant, Marlon Flores-Granados, appealed the decision of the lower court, alleging that he was improperly given a 16-level enhancement based on a prior conviction.  The Fourth Circuit sided with the appellee, the United States government, holding that under North Carolina law, second degree kidnapping constitutes a “crime of violence,” thus affirming the district court’s enhanced sentencing of Flores-Granados based on his prior conviction.

Origin of “Crime of Violence”

Under the United States Sentencing Guidelines (“Sentencing Guidelines”), a defendant previously deported after a conviction for a “crime of violence,” and having unlawfully returned to the United States, is subject to an enhancement of either 12 or 16 levels depending on whether the conviction receives criminal history points.  U.S.S.G. § 2L1.2(b)(1)(A)(ii).  The Application notes to the Sentencing Guidelines refer to kidnapping as a crime of violence.

On appeal, Flores-Granados argued that, under North Carolina law, his prior conviction for second degree kidnapping did not constitute a “crime of violence.”  Applying the categorical approach outlined by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), the Fourth Circuit held that second degree kidnapping is a crime of violence within the meaning of the Sentencing Guidelines.

Applying Supreme Court Precedent to Second Degree Kidnapping Under NC Law

Under the categorial approach, courts must identify the generic contemporary meaning of the crime and then compare the generic definition to the definition given in the state statute of the state where the defendant was previously convicted.  Then, if the state has adopted the generic meaning, or a narrower definition included in the generic meaning, there is no conflict, and the defendant has necessarily been convicted of the crime under the generic meaning.  Thus, the drafters of the Sentencing Guidelines meant to include the crime within its crime of violence definition.

According to the Fourth Circuit, the district court misapplied the analysis of Taylor to Flores-Granados’ previous conviction in determining whether second degree kidnapping is a crime of violence by looking to the specific facts of the case.  However, the Fourth Circuit looked at the record anew to determine whether theories not considered or rejected by the district court could still support the district court’s sentencing decision.

The Fourth Circuit considered commonalities amongst the Model Penal Code (“MPC”), the laws of the states, and sister circuits, to determine the generic definition of kidnapping.  The MPC defines kidnapping as either unlawful removal from a place of business or residence or unlawful confinement in isolation for a prolonged period for one of four enumerated purposes.  See Model Penal Code § 212.2.  Ultimately, drawing from other state and circuit law, the Fourth Circuit concluded that “[t]o be within generic kidnapping, in addition to unlawful restraint by force, threat or fraud, a statute must contain as an element an additional aggravating factor such as nefarious purposes or substantial interference with the victim’s liberty, but need not require both.”

Upholding the District Court’s Decision

Because the generic meaning “substantially corresponds” with the North Carolina statute defining second degree kidnapping, Flores-Granados’ prior conviction was a crime of violence, and thus it was proper for the district court to apply enhanced level sentencing in Flores-Granados’ case.