Wake Forest Law Review

By Ali Fenno

On March 13, 2017, the Fourth Circuit issued a published opinion in the criminal case of United States v. Lara.  In Lara, the Fourth Circuit addressed whether the district court violated the psychotherapist-patient privilege and the Fifth Amendment privilege against self-incrimination when, during a sentencing hearing, it considered statements the defendant, Juan Lara (“Lara”), made while participating in a compulsory Sex Offender Treatment Program (“Treatment Program”) that had been a condition to his probation. After examining the knowing and voluntary nature of Lara’s consent to his probation terms and the voluntary nature of the statements Lara made during the Treatment Program, the Fourth Circuit concluded that the district court did not err in considering the self-incriminating statements.

Factual and Procedural Background

In February 2008, Lara was convicted for the aggravated sexual battery of a mentally incapacitated victim under Virginia Code Section 18.2-67.3(A)(2) and sentenced to 20 years’ imprisonment with 17 years suspended. In addition, upon his release from confinement, Lara was to serve 20 years’ supervised probation and was required to complete a Treatment Program, allow the Treatment Program provider to have “unrestricted communication with the probation and parole department,” and “submit to any polygraph . . . deemed appropriate by [his] supervising officer.” Lara acknowledged and consented to these conditions before his release by signing a form that listed the conditions.

Lara’s probationary period started immediately upon his release in December 2009. He was referred to a Treatment Program, Flora Counseling Services Corporation (“Flora), and met with one of Flora’s licensed clinical social workers for an interview in April 2010. During the interview, Lara detailed his past sexual conduct with minors, commission of forcible sexual assaults, and involvement in two murders. He later confirmed these incidents in a polygraph examination and signed a written statement describing the incidents. Then, in July 2010, he signed a document entitled “Sex Offender Program Acknowledgment of Confidentiality Waiver” to acknowledge that all information he relayed to Flora’s therapists and group leaders “is not privileged or private” and that Lara “waive[d] any and all such rights of confidentiality which may exist by statute or rule of law.”

Lara successfully completed Flora’s Treatment Program, but in March 2014, in violation of his conditions of probation, he moved from Virginia to Texas without notifying his probation officer or updating his registration with the Virginia State Police’s Sex Offender and Crimes Against Minors Registry. Several months later, he was arrested and indicted by a federal grand jury for violating the Sex Offender Registration and Notification Act (SORNA).

Lara pleaded guilty to the SORNA violation and filed a motion to exclude from consideration at sentencing the statements he made during Flora’s Treatment Program interview that detailed his past criminal incidents. The district court denied his motion, holding that he had voluntarily waived any psychotherapist-patient privilege and that the Fifth Amendment did not protect him from the government’s use of voluntary disclosures of incriminating information. The court then concluded that Lara more likely than not committed the crimes he admitted to during Flora’s Treatment Program interview, and sentenced him to 120 months’ imprisonment.

Issues on Appeal and Standard of Review

The first issue on appeal was whether Lara knowingly and voluntarily waived the psychotherapist-patient privilege. The second issue was whether the incriminating statements Lara made during his intake interview invoked his Fifth Amendment privilege against self-incrimination.  A district court’s determination of whether a privilege should be recognized is a mixed question of law and fact. Accordingly, the Fourth Circuit reviewed both issues de novo.

Waiver of the Psychotherapist-Patient Privilege

Lara first argued that he did not waive the psychotherapist-patient privilege because he was “compelled to participate” in Flora’s Treatment Program. In rejecting this argument, the Fourth Circuit first noted that the psychotherapist-patient privilege is strictly construed, and a defendant has the burden of showing that he did not waive the privilege by knowingly and voluntarily relinquishing it. The court then recognized that, especially when the probationary period is used as an alternative to incarceration, courts administering probation as a punishment may deprive a criminal offender of certain freedoms. The Fourth Circuit further identified multiple courts that had found a criminal defendant’s consent to court-imposed conditions of release to be voluntary despite the alternative of incarceration.

Here, Lara chose to agree to the terms of his supervised probation as an alternative to incarceration. Those terms explicitly authorized Treatment Program providers to have “unrestricted communication” with the state probation and parole department as an alternative to incarceration. Accordingly, the Fourth Circuit concluded that the alternative of incarceration did not eradicate the voluntary nature of Lara’s consent to the terms of his probation, and held that Lara waived any psychotherapist-patient privileges that may have applied to the incriminating statements he made while participating in Flora’s Treatment Program.

Failure to Invoke Fifth Amendment Privilege

Next, Lara argued that his Fifth Amendment privilege against self-incrimination was violated because the probation conditions required him to disclose incriminating information. The Fourth Circuit rejected this argument as well. It first noted that the Fifth Amendment privilege “generally is not self-executing” and that a defendant “ordinarily must assert the privilege rather than answer if he desires not to incriminate himself.” But it then looked to Minnesota v. Murphy, where the United States Supreme Court recognized that the threat of revocation of probation could “trigger self-executing Fifth Amendment protections.” However, this could only occur when direct evidence indicated that the defendant only confessed because it was nearly certain that his silence would cause probation to be revoked.

The Fourth Circuit then examined the factual record and could not find any direct evidence that Lara made the incriminating statements during Flora’s Treatment Program interview under the threat of revocation of his probation. Indeed, the state court could not have revoked his probation if he had asserted his Fifth Amendment privilege during the interview. Thus, the Fourth Circuit held that the statements were voluntarily made and did not invoke Lara’s Fifth Amendment privilege against self-incrimination.

Conclusion

Because Lara’s incriminating statements were knowingly and voluntarily made, the Fourth Circuit concluded that he waived the psychotherapist-patient privilege and did not invoke the Fifth Amendment privilege against self-incrimination.  Accordingly, the Fourth Circuit affirmed the district court’s judgment, holding that the district court did not err when it considered at the sentencing hearing the incriminating statements Lara made during Flora’s Treatment Program.

 

By John Van Swearingen

On March 13, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Winston. Robert Winston (“Appellant”), currently serving a 275-month sentence for a federal firearms charge from 2002, filed a motion for post-conviction relief under 28 U.S.C. § 2255 (2012) in the United States District Court for the Western District of Virginia. Appellant asserted the sentencing enhancements applied to his case were invalidated by Johnson v. United States (“Johnson II“), a 2015 Supreme Court decision striking part of the Armed Career Criminal Act (“ACCA”) and narrowing the scope of “violent felonies” included thereunder. No. 13–7120, slip op. at 15 (U.S. June 26, 2015). The district court rejected Appellant’s arguments. On appeal, the Fourth Circuit reversed the district court, holding Virginia’s common law robbery no longer qualified as a “violent felony” under the ACCA, and remanded the case for further proceedings.

Facts and Procedural History

In 2002, Appellant was sentenced to 275 month’s imprisonment for a federal firearms charge. Appellant’s sentence was enhanced under the ACCA, which mandates a fifteen-year minimum sentence for any person convicted of a firearms offense who has three prior “violent felonies” or serious drug offenses. At the time, the ACCA had categories of “violent felonies:” those established under the statute’s force clause and those under the statute’s residual clause, which included burglaries, arsons, and any other conduct that posed a serious risk of injury to another person. Appellant had four prior then-qualifying convictions: (1) rape under the Uniform Code of Military Justice (“UCMJ”), (2) common law robbery in Virginia, (3) possession of cocaine with intent to distribute in Virginia, and (4) a federal conviction for distribution of cocaine base.

After the Supreme Court published its 2015 opinion in Johnson II, which limited the definition of “violent felony” under the ACCA by striking the residual clause for vagueness, Appellant filed the instant action asserting that neither the UCMJ rape conviction nor the Virginia robbery conviction satisfied the new definition of “violent felony.” Without the ACCA sentencing enhancements, Appellant’s maximum sentence in 2002 would have been ten years, meaning Appellant would be immediately available for release.

The district court has not yet addressed Appellant’s rape conviction. The matter before the Fourth Circuit focused solely on Appellant’s common law robbery conviction. The government argued two points to challenge Appellant’s motion for relief. First, the government argued that, since Appellant could not prove that his robbery conviction was defined a “violent felony” under the now-stricken residual clause of the ACCA, Appellant did not rely on a new rule of constitutional law and was thus foreclosed from requesting relief. Second, the government argued that common law robbery still satisfied the limited definition of “violent felony” under the ACCA.

The district court disagreed with the government’s procedural assertion but agreed with the government’s substantive assertion, and it accordingly held the Virginia crime of common law robbery was a “violent felony” under the ACCA. Appellant timely filed the instant appeal.

Appellant Relied on a New Rule of Constitutional Law for the Motion for Post-Conviction Relief.

28 U.S.C. §§ 2244(b)(2)(A), 2244(b)(4) (2012) requires that motions for post-conviction relief rely on a new rule of constitutional law. The record never established that Appellant’s common law robbery conviction was only considered for enhancement by the sentencing court under the residual clause of the ACCA struck in Johnson II. Thus, the government argued, Appellant could not show reliance on the holding in Johnson II and was, therefore, barred from moving for relief.

The Fourth Circuit agreed with the district court that the sentencing court’s failure to disclose the clause or clauses of the ACCA under which it considered Appellant’s convictions could not be fatal to Appellant’s claim. The Fourth Circuit held that any movant seeking post-conviction relief, where that movant’s conviction may have been enhanced based on the now-void residual clause struck in Johnson II, may challenge their sentence. To hold otherwise, according to the Fourth Circuit, would punish defendants for a sentencing court’s discretion in failing to disclose the clauses of the ACCA under which it evaluated the defendant’s enhancements.

The Virginia Crime of Common Law Robbery Is Not a Violent Crime under the ACCA

Appellant challenged the district court’s holding that the Virginia crime of common law robbery was a “violent felony” under the ACCA. Since the residual clause was struck from the ACCA, all violent felonies must meet the definition established in the statute’s force clause, 18 U.S.C. § 924(e)(2)(B)(i) (2012), which requires an element of “use, attempted use, or threatened use of physical force against the person of another.” The force clause was clarified in the Supreme Court’s 2010 decision in United States v. Johnson (“Johnson I”), which defined “physical force” in the statute to mean only “violent force” that could cause injury or pain. No. 08–6925, slip op. at 6 (U.S. Mar. 2, 2010).

The Fourth Circuit noted that the Supreme Court’s decision in Moncrieffe v. Holder required the reviewing court to consider the “minimum conduct criminalized” by a state criminal law. No. 11–702, slip op. at 5 (U.S. Apr. 23, 2013). In Virginia, a common law robbery conviction can be sustained where a defendant steals the property of another by “violence or intimidation.” Pierce v. Commonwealth, 138 S.E.2d 28, 31 (Va. 1964). The “violence” element of the crime can be satisfied by the bare minimum of physical force needed to overcome a victim’s resistance. Maxwell v. Commonwealth, 183 S.E. 452, 454 (Va. 1936).

A conviction for common law robbery could therefore be sustained where only a minimum amount of “violence” is used – for example, turning someone’s body in order to grab their purse. Injurious “violent force” is not an element of the crime. The crime is therefore not a “violent felony” for sentencing enhancements under the ACCA. Thus, the Fourth Circuit reversed the district court’s holding and held the Virginia crime of common law robbery did not meet the standard set by the force clause of the ACCA, as clarified in Johnson I.

Disposition

The Fourth Circuit affirmed the district court’s holding regarding the procedural matter but reversed the district court’s substantive holding regarding the status of common law robbery as a “violent felony.” Thus, the district court’s judgment was vacated, and the case was remanded for further consideration regarding Appellant’s rape conviction under the UCMJ.

By Kelsey Hyde

Today, the Fourth Circuit issued a published opinion, In re William Robert Gray, Jr., deciding on a motion for authorization to file a second or successive application for a writ of habeas corpus. The movant (“Gray”) had sought the Court’s approval to file a second petition under 28 U.S.C. § 2254, as would be necessary under 28 U.S.C. §2244(b), but the Fourth Circuit held this action was unnecessary based on finding that Gray’s petition was in fact a “first challenge” to a new or intervening judgment. By way of this ruling, the Fourth Circuit joined the Third, Sixth, Ninth, and Eleventh Circuit Courts in their treatment of habeas petitions filed after a new, intervening judgment as not second or successive within the meaning of §2244(b).

Factual Background & Procedural History of Gray’s Claims

            In 1993, Gray was convicted in North Carolina of first-degree murder and sentenced to death. Gray then filed a 28 U.S.C. §2254 petition—an application for a writ of habeas corpus for a person in custody based on the judgement of a State court—in federal district court, which was dismissed. However, the Fourth Circuit reversed in part, finding that Gray’s counsel had been ineffective at his sentencing and ordering the district court to grant the writ of habeas corpus, unless the State were to afford Gary a new sentencing hearing within a reasonable period of time. When resentencing still had not occurred after five years, Gray filed his own pro se motions challenging both this delay and his underlying conviction, which were all denied by the district court and affirmed by the Fourth Circuit. Then, the State decided it would not seek the death penalty and finally resentenced Gray to life in prison. Gray then filed this motion under 28 U.S.C. § 2244(b) for approval to file a second or successive § 2254 petition regarding his underlying criminal conviction.

Gray’s Contentions & Issue Presented to the Fourth Circuit

            Ultimately, Gray contended that the Fourth Circuit’s approval under § 2244(b) was not necessary because his resentencing acted as a new, intervening judgment, and therefore his petition was not “second or successive.” The issue for the Court’s consideration was whether, following a successful habeas petition regarding sentencing, Gray could then challenge his underlying conviction without triggering the “second or successive” requirements, and therefore not requiring court of appeals approval.

“Second and Successive Petitions” for Habeas Relief

            Per 28 U.S.C. §2244 and the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a petitioner incarcerated based on a State judgment cannot bring “second or successive” motions for habeas relief, and such claims shall be dismissed unless authorized by the appropriate court of appeals. §2244(b)(1), (3). However, authorization to file may be found unnecessary if the court of appeals determines that the petition in question is not in fact second or successive. Thus, a court must first determine whether a petition is second or successive, and only then if it is found to be second or successive should the court review the claim for satisfaction of the §2244(b) requirements. Magwood v. Patterson, 561 U.S. 320, 334-35 (2010). The Supreme Court in Magwood also emphasized that this second or successive distinction must be made with respect to the particular judgment being challenged, and resentencing a defendant is an “intervening judgment” such that a subsequent petition regarding this new sentencing would not be second or successive. Id. at 339, 342. However, the Court in Magwood only decided the issue in regards to another petition following a new sentencing judgment, and did not have occasion to determine whether this result also applied when the subsequent petition went to the defendant’s underlying conviction and adjudication of guilt, rather than sentencing. Id. at 342. The Third, Sixth, Seventh, Ninth, and Eleventh Circuits all had occasion to decide this precise issue, and all but one (the Seventh Circuit) determined that where a defendant received a new judgment as a result of a habeas petition relating to resentencing, a subsequent petition relating to their underlying conviction would not be considered “second-in-time” such that §2244(b) applied and required authorization. The issue presented in Gray’s claim had yet to be addressed by the Fourth Circuit.

Petition Not Considered “Second or Successive” Where Defendant Received Intervening Judgment on Sentencing But Now Seeks to Challenge Conviction

            The Fourth Circuit sided with the majority of the other circuits mentioned, and found that a movant in Gray’s situation—filing a habeas petition relating to underlying conviction after a successful habeas petition relating to sentencing—would not be submitting a second-in-time petition such that § 2244(b) would apply. The Court believed that, in the Magwood ruling, the Supreme Court made clear that an intervening judgment wholly resets the “habeas counter” at zero. Additionally, the Court also found this conclusion fitting in light of other Fourth Circuit precedent. See In re Wright, 826 F.3d 774 (4th Cir. 2016) (finding §2244(b)’s “second and successive” requirements did apply where prisoner’s first §2254 petition was dismissed, there was no intervening judgment, and the subsequent petition was challenging the same judgment yet merely setting forth an argument that had not been included in his original.) Moreover, the Court found this interpretation of Magwood to be consistent with the AEDPA’s goal of limiting the ability to make these successive petitions to these narrowly-defined circumstances, and further emphasized that this ruling in no way inhibits the other procedural safeguards that effectively bar excessive and redundant claims.

Fourth Circuit Orders District Court to Hear Petition as First Challenge, Not Second-in-Time

Because Gray’s §2254 petition was not second or successive, the Fourth Circuit found that review under §2244(b) was unnecessary, and thus directed the district court to hear the petition as a first challenge to this new judgment.

 

By John Van Swearingen

On January 24, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Agyekum. In the United States District Court for the Southern District of West Virginia, Kofi Agyekum (“Appellant”) plead guilty to two counts of structuring transactions, forfeiting over $2,300,000 in cash assets. Appellant challenged his sentence on two grounds: first, that sentencing enhancements based on involvement in a drug conspiracy were not “relevant conduct” with respect to his structuring convictions, and second, that sentencing enhancements based on his role as a pharmacist did not constitute “relevant conduct” with respect to the same convictions. Additionally, Appellant contended that the district court did not adequately ensure that he understood the procedural protections waived in his plea agreement. The Fourth Circuit affirmed Appellant’s sentence, holding that the Appellant’s involvement in a drug conspiracy and role as a pharmacist were within the scope of “relevant conduct.” Additionally, Appellant adequately understood the waivers of rights involved with his plea agreement.

Facts and Procedural History

In October, 2012, Appellant and his wife opened A+ Care Pharmacy in Barboursville, West Virginia. Appellant had total control over the operations of the business. Appellant’s wife was the licensed pharmacist, but she operated solely under Appellant’s control.

A confidential informant (“CI”) involved in a 2014 oxycodone trafficking ring investigation notified federal investigators that he had been filling prescriptions at A+ Care Pharmacy since November 2012. The CI made several controlled buys under supervision of the investigating agents in which the Appellant charged the CI an abnormally high price to fill out-of-state oxycodone prescriptions, doctored receipts to avoid leaving a paper trail, and discussed permitting the purchase of oxycodone without a prescription.

The investigation uncovered that Appellant was regularly filling ten to eighteen prescriptions a week for an organized drug ring headquartered in Kentucky with operations throughout the southeast United States. In spring of 2014, Appellant began selling oxycodone to the head of the organization without a prescription for around $15 per pill, and on one occasion, accepted a vehicle as payment. A+ Care Pharmacy was the third largest distributor of oxycodone in the state, and the drug comprised 70% of its business.

During this time, Appellant opened numerous bank accounts with several different financial institutions around town. Appellant used multiple accounts to avoid making cash deposits of $10,000 or more, which are subject to federal reporting. From March to August, 2014, Appellant deposited almost $470,000 in accounts at five banks, never depositing more than $10,000 into a single account on a single day.

In August, 2014, investigating agents executed a search warrant at A+ Care Pharmacy, seizing 51,000 pills of oxycodone, $68,000 in cash hidden in the pharmacy’s office, over $440,000 in cash stored in two safe deposit boxes, and 20 bank accounts owned by Appellant. Over $2,300,000 in assets were seized. Appellant was arrested.

Appellant was indicted with conspiracy to illegitimately distribute oxycodone, aiding and abetting the illegitimate distribution of oxycodone, forty counts of money laundering, and eleven counts of structuring cash transactions to avoid reporting.

After six months in jail, Appellant agreed to plead guilty to two counts of structuring transactions, forfeit over $2,300,000 in assets, and waive the procedural rights to any future challenges to the forfeiture. Appellant initially refused the plea agreement because of the forfeiture term, but eventually acknowledged to the district court that he understood the forfeiture term and accompanying waiver and accepted the plea deal.

Appellant’s sentencing report included multiple enhancements, including two to which Appellant objected: (1) enhancement based on Appellant’s role as a “leader” or “manager” within the criminal drug conspiracy pursuant to U.S.S.G. § 3B1.1(c), and (2) enhancement based on Appellant’s abuse of a position of trust pursuant to U.S.S.G. § 3B1.3. Appellant’s objections centered on the assertion that neither the Appellant’s participation in the drug conspiracy nor his role managing a pharmacy constituted “relevant conduct” with respect to his transaction structuring convictions as outlined in U.S.S.G. § 1B1.3. Additionally, Appellant claims that the district court did not properly ensure that he understood the waiver of procedural protections involved in his plea deal.

A Leadership Position In A Conspiracy Was “Relevant Conduct” With Respect To Structuring Cash Deposits Arising Out Of That Conspiracy

Appellant’s argument centers on the belief that enhancements for “relevant conduct” are limited strictly to the behaviors associated with the convictions. Here, those convictions were for structuring bank transactions. Therefore, Appellant argues, the only applicable enhancements must arise from his conduct as a bank customer.

U.S.S.G. § 1B1.3(a) defines “relevant conduct” in the scope of sentencing more broadly than the conduct considered for criminal liability. See United States v. McVey, 752 F.3d 606, 610 (4th Cir. 2014). “Relevant conduct,” therefore, can include preparatory conduct, conduct to avoid detection, and other conduct related to the commission of the charged offense.

But for the illicit nature of Appellant’s participation in a drug trafficking conspiracy, Appellant would not have been receiving large cash payments on a regular basis. Additionally, Appellant only structured the transactions to avoid the reporting requirements that would have alerted federal authorities to the cash-intensive nature of his dealings. Therefore, the court noted, Appellant’s participation in the drug conspiracy was “relevant conduct” for the purpose of sentence enhancement. Thus, if Appellant was in a leadership position in the conspiracy, the sentence enhancement was appropriate.

Appellant was in sole operational control of A+ Care Pharmacy, and directed the pharmacy’s operations regarding the filling of out-of-state prescriptions, mandated the acceptance of cash only for oxycodone, set the price for oxycodone transactions based on risk, and advised members of the conspiracy to also acquire prescriptions for non-narcotic drugs in order to reduce suspicion. The district court, therefore, was proper in determining Appellant had a leadership role in the drug conspiracy, and the sentence enhancement was therefore appropriate.

Abuse Of The Position Of Pharmacy Manager Was “Relevant Conduct” With Respect To Structuring Cash Deposits Arising Out Of That Position

Appellant also challenges the sentence enhancement based on the abuse of his position managing a pharmacy – a position of public trust – because his role was not “relevant conduct” with respect to the structured transactions.

Having determined that the pharmaceutical operations were within the scope of “relevant conduct,” the court then considered whether Appellant was abusing a position of public trust. The purpose of the enhancement is to punish those “who take advantage of a position that provides them with the freedom to commit a difficult-to-detect wrong.” United States v. Brack, 651 F.3d 388, 393 (4th Cir. 2011). Additionally, the defendant must have some sort of relationship to his victim that involves trust. United States v. Caplinger, 339 F.3d 226, 236 (4th Cir. 2003).

Appellant exploited his position by purchasing oxycodone from a legal distributor at a level that exceeded his actual lawful uses. Additionally, Appellant took advantage of his position as both a husband and a manager to force his wife to fill prescriptions for a drug trafficking ring. Appellant doctored records to conceal his activities from the West Virginia Board of Pharmacy. Thus, Appellant was using his unique position managing a pharmacy in order to facilitate the drug trafficking operations – “relevant conduct” underlying the structured transactions.

Appellant Fully Understood His Waiver Of Rights With Respect To Forfeiture

Appellant contended that the district court failed to ensure that he fully understood the rights he waived with respect to his asset forfeiture. However, the record on appeal included several exchanges in open court wherein Appellant (1) claimed multiple times to understand the terms of the plea agreement, (2) contested the plea agreement because he did not agree to the scope of the forfeiture term, and (3) subsequently agreed to the forfeiture term and plea agreement after discussing his situation with his lawyer. Therefore, Appellant’s assertion was wholly unsupported by the record.

Disposition

The Fourth Circuit affirmed both challenged sentencing enhancements and denied Appellant’s challenge to his waiver of rights regarding the forfeiture term of the plea agreement.

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 John Van Swearingen

On Wednesday, November 23, 2016, the Fourth Circuit issued a published opinion in the civil case Rodriguez v. Bush. This matter was a habeas corpus petition brought by an offender sentenced to forty-five years in prison for drug trafficking. The United States District Court for the District of South Carolina denied Rodriguez’s petition under 28 U.S.C. § 2254 (2012), holding that Rodriguez’s claim for ineffective assistance of counsel failed to establish that his defense was prejudiced by his counsel’s performance. Rodriguez’s claim was rooted in his counsel’s failure to object to state trial judge’s denial of Rodriguez’s accepted plea offer. The Fourth Circuit Court of Appeals affirmed the district court’s denial of Rodriguez’s petition on the basis that there is no federal or constitutional right to have a plea bargain accepted by a trial court, and therefore, his counsel’s failure to object could not establish prejudice to Rodriguez’s defense.

Facts and Procedural History

In 2009, on the day Rodriguez’s trial, the prosecutor offered Rodriguez and his co-defendants various plea bargains. The offer to Rodriguez was for a recommended sentence of 20 years, and Rodriguez’s co-defendants were made similar offers. The offers to the co-defendants were accepted by the court.

However, when Rodriguez’s counsel presented the plea offer to the trial judge, the judge rejected the offer, stating that “he was not going to accept the plea and that he was ready to try a case this week.” While Rodriguez’s counsel did attempt to convince the judge to accept the plea deal, he did not object on the record to preserve the rejection for appeal.

The state court denied Rodriguez’s motion for post-conviction relief, stating that his counsel’s failure to object did not prejudice Rodriguez’s defense and the trial court’s denial of the plea offer did not violate Rodriguez’s due process rights. Rodriguez then appealed to the South Carolina Supreme Court, but certiorari was denied. Rodriguez then filed a petition in federal court under § 2254.

The Ineffective Assistance of Counsel Claim

Strickland v. Washington, 466 U.S. 668, 687 (1984), governs ineffective assistance of counsel claims. Under Strickland, to prove ineffective assistance of counsel, Rodriguez must show (1) “that counsel’s performance was deficient” and (2) “that the deficient performance prejudiced the defense.”

Despite being a two-pronged test, a reviewing court is free to examine the prejudice prong first, as it is dispositive to the claim. Rodriguez was not prejudiced by his counsel’s failure to object to the rejection of the plea deal, because a defendant cannot be prejudiced by a claim that has no merit under governing law. Therefore, Rodriguez’s ineffective assistance of counsel claim fails.

There is No Due Process Claim to Have a Plea Deal Accepted by the Court

In Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012), the Supreme Court held that there is no federal right to have a judge accept a plea deal. The Court further clarified this point in Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012), explicitly stating that there can be no due process claim even where “a plea deal is accepted by the defendant but rejected by the judge.” Even further, there is no constitutional claim under the same facts. Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297 n.19 (4th Cir. 1992).

Therefore, the governing law clearly states that Rodriguez, nor any other similarly-situated defendant, claims a right to have an accepted plea offer honored by a presiding judge. Rodriguez based his due process claim on the premise that such a right existed. Since the claim has no support under governing law, and because this same claim forms the basis of his ineffective assistance of counsel claim, both of his claims on appeal fail.

                                                                    Disposition

The Fourth Circuit affirmed the district court’s denial of Rodriguez’s petition under § 2254. Both the ineffective assistance of counsel and due process claims were based on the premise that a defendant has a right to have a plea deal accepted by a presiding judge. Because no such right exists, Rodriguez’s claims were properly denied.

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By Sophia Blair

On November 10, 2016, the Fourth Circuit issued a published opinion in the criminal case, United States v. Williams. Earnest Lee Williams Jr. (“Williams”) was charged with attempting to enter a bank with the intent to commit a felony and larceny in violation of 18 U.S.C. § 2113(a). Williams pleaded guilty to the charge and was sentenced under U.S.S.G. § 2B3.1, pursuant to its robbery guidelines. Williams appealed his sentence, arguing that the district court erroneously applied the robbery guideline under U.S.S.G. § 2B3.1 instead of the burglary guideline under U.S.S.G. § 2B2.1. The Fourth Circuit agreed with Williams, vacated his sentence, and remanded to the district court for resentencing under the burglary guideline.

Facts and Procedural History

In January 2014, Williams approached a Southern Bank building (“Bank”) in Rocky Mount, North Carolina. Williams was unarmed and, as he later admitted to police, simply planned on telling the bank tellers to place the Bank’s money in his bag. Williams entered the exterior doors of the Bank into an anteroom. Before he could enter the interior doors into the Bank, a teller who thought she recognized Williams from a previous robbery locked all of the doors. The teller asked Williams through an intercom whether he had an account and he said he did, though he had left his bank card in his car. The teller unlocked the exterior doors and told Williams to use the drive-through window. Williams went back to his car and drove off. The police were called and they quickly apprehended Williams. After being read his rights, Williams admitted to the police that he was in need of money as well as his plan to rob the Bank.

In August 2014, a federal grand jury indicted Williams for violating 18 U.S.C. § 2113(a). Williams pleaded guilty to the charge. § 2113(a) is covered by four Sentencing Guideline section including U.S.S.G. § 2B3.1 (Robbery) and § 2B2.1 (Burglary). The probation officer calculated Williams’ imprisonment range at 37–46 months according to the robbery guideline.

Williams objected to the application of the robbery guideline for sentencing because he pled guilty to an indictment for burglary without reference to force or violence. Specifically, Williams was charged with “attempting to enter a bank . . . with the intent to commit in such bank a felony affecting such bank . . . .” Given the lack of force or violence, the burglary guideline was more applicable, and would yield an imprisonment range of 10–16 months.

The probation officer contended that the robbery guideline was more applicable because it contained a sentencing enhancement for targeting a financial institution, while the burglary guideline did not. The district court agreed with the probation officer that the robbery guideline would apply, and sentenced Williams to a term of 38 months. Williams appealed.

Improper Application of Robbery Guideline

The Fourth Circuit agreed with Williams that the burglary guideline should apply. When a conviction falls under the express terms of multiple guidelines, the sentencing court must apply the most applicable one. Relying on United States v. Boulware, the Fourth Circuit held that the most applicable guideline is determined by comparing the guideline texts with the charged misconduct. The court should not compare the guidelines to the statute or the actual conduct because they may implicate several guidelines or include factors of indicted offenses instead of elements.

18 U.S.C.  § 2113(a)

2113(a) may be violated either by robbery or burglary. Bank robbery involves attempting to take from a bank by force, intimidation, or extortion, while burglary simply involves entering a bank with the intent to commit a crime. Because there was no element of force in the indictment, the Fourth Circuit held that Williams should have been sentenced under the burglary guidelines.

Disposition

Because there was no element of force in the indictment to which Williams pled, the Fourth Circuit vacated the district court’s judgment and remanded the case for resentencing under the burglary guideline § 2B2.1.

By John Van Swearingen

On Wednesday, November 9, 2016, the Fourth Circuit issued a published opinion in the civil case LeBlanc v. Mathena. This matter was a habeas corpus petition brought by a juvenile offender sentenced to life without parole for a non-homicide offense. The District Court of the Eastern District of Virginia had previously concluded that Virginia’s Geriatric Release program, which provides offenders sentenced to life without parole the opportunity to petition for conditional release after the age of sixty, violated the minimum standards of the incorporated Eighth Amendment as held in Graham v. Florida, 560 U.S. 48 (2010). In Graham, the Supreme Court of the United States held that the Eighth Amendment forbids the sentencing of juveniles convicted of non-homicide offenses to life without parole. Juvenile life sentences for non-homicide offenses must provide a meaningful and realistic opportunity to obtain release based on “demonstrated maturity and rehabilitation.” Here, the circuit court affirmed the district court’s ruling, holding that Geriatric Release does not meet the requirements of Graham.

Facts and Procedural History

On January 1, 1995, Virginia enacted Va. Code Ann. § 53.1-165.1 (2015), abolishing parole for felonies convicted after that date. On July 6, 1999, the Petitioner committed the crimes of rape and abduction, and on July 15, 2002, he was convicted and sentenced to two life sentences.

After the Supreme Court decided Graham in 2010, the Petitioner filed a motion in Virginia state court to vacate his sentence of life without parole. In 2011, the state trial court denied Petitioner’s motion based on Angel v. Commonwealth, a contemporaneous Virginia Supreme Court decision holding that Virginia’s Geriatric Release program satisfied the requirements of Graham.

In June of 2012, the Petitioner filed a writ of habeas corpus in the District Court of the Eastern District of Virginia. The district court granted the habeas petition, holding that the Geriatric Release program did not meet the standards established in Graham. The Respondents in this case, the state, timely filed this appeal.

Virginia’s Geriatric Release Program

Virginia’s Geriatric Release program is a two-stage process by which convicted offenders with life sentences can apply for conditional release. Unlike Virginia’s abolished parole doctrine, the Geriatric Release program is not automatic. Offenders must initiate the process with a petition to the Parole Board – and again, they may only do so after their sixtieth birthday.

The first stage of the Geriatric Release process requires the offender’s petition demonstrate a “compelling” reason for the release of the offender. The term “compelling” is not defined in the relevant statute or administrative regulations. The Parole Board is able to deny the petition for Geriatric Release for any reason at this point.

Should the Parole Board permit the petition to go to the second stage, the offender will be provided the opportunity to make oral and written statements to the Parole Board to advocate for his or her release. If at least four out of five members of the Board agree, the offender’s petition for Geriatric Release will be granted.

Again, the process is distinguishable from the old parole system. Geriatric Release cannot be initiated until the offender turns sixty. Virginia’s parole process typically initiated after offenders had served about fifteen years. The Petitioner would likely have been eligible for parole, under the old system, after around twenty years. Under the Geriatric Release program, that length of time is approximately doubled. Further, only three out of five members of the Parole Board had to agree to grant parole. The Geriatric Release program requires one more member of the board for approval.

Standard of Review for Habeas Corpus Petitions

When a habeas petition is filed, the standard of review turns on whether the petition involves a question of law or fact. This case presents a question of law, meaning the standard of review is stated at 28 U.S.C. § 2254(d)(2) (2012). If the court’s decision was an “unreasonable determination” of how the law applies to the facts in this case, then the court’s decision was improper. If the decision was reasonable, it stands.

Habeas petitions in federal district courts must review the case at hand in addition to the most recent state case addressing the issue. In this case, the most recent state case was the Angel decision, which held that the Geriatric Release program met the requirements of Graham. Since the state decision is contrary to the district court’s decision, either Angel or the district court’s decision will be determined unreasonable, and one holding will be affirmed.

The Standard Established in Graham

The holding in Graham was based on the Supreme Court’s conclusion that juveniles are less culpable for crimes than adults. Juvenile brains, the Court noted, are still developing. Because of this, the Court stated, juvenile offenders are less likely to be “irretrievably depraved” than adults. With that in mind, the Court examined the prospect of life without parole for juveniles convicted of non-homicide offenses in the context of the Eighth Amendment.

The Court noted that life without parole is only second to the death penalty in its harshness and ability to deprive convicted persons of hope. Life without parole is, therefore, an ultimate judgment of the irrevocable nature of an offender’s character. Given those points, the Court held that life sentences for juveniles convicted of non-homicide offenses must meet three requirements.

First, the sentence must provide an opportunity to obtain release based on “demonstrated maturity and rehabilitation.” Second, this opportunity must be meaningful and realistic. Third, the state’s parole and release programs at large must account for the lesser culpability of juveniles.

The Geriatric Release Program Does Not Satisfy the Graham Requirements

The Fourth Circuit held that the Virginia Geriatric Release program does not meet any of the three requirements set out in the Graham decision, thus overturning Angel and affirming the district court’s holding.

First, the Geriatric Release program does not require the Parole Board to consider any factors relevant to the juvenile’s maturity or rehabilitation. Additionally, because of the two-stage review process, a petition can be denied at the first stage – before the presentation of oral and written arguments. Also, over 95% of the denials of Geriatric Release petitions were based on the nature of the underlying crimes, which, again, precludes consideration of maturity and rehabilitation. Therefore, the program does not meet the first requirement of Graham.

Second, the circuit court held the extended duration of time compared to parole, coupled with the lack of consideration for juvenile-specific factors, rendered the opportunity provided under the Geriatric Release program neither meaningful nor realistic for juvenile offenders facing life sentences. Therefore, the program does not meet the second requirement of Graham.

Finally, the Geriatric Release program fundamentally contravenes the concerns underlying the Court’s third requirement in Graham. Unlike the abolished parole program, which counted time served regardless of age, the Geriatric Release program requires juveniles serving life sentences to spend a longer percentage of their life incarcerated than an adult serving the same sentence. Essentially, the program ensures that juveniles, though deemed to be less culpable by the Supreme Court, will bear a harsher punishment than adults.

Disposition

The Fourth Circuit affirmed the district court’s order remanding the Petitioner’s case for resentencing. The Virginia Geriatric Release program permits the denial of offender’s petitions without requiring consideration of demonstrated maturity or rehabilitation. The program, in execution, results in more comparably harsh sentences for juvenile offenders than adult offenders. Therefore, the Geriatric Release program does not meet the requirements of the incorporated Eighth Amendment as enumerated in Graham.

By Ali Fenno

On October 25, 2016, the Fourth Circuit issued a published opinion in the criminal case of Dingle v. Stevenson. In Dingle, the Fourth Circuit addressed whether the Supreme Court’s holding in Roper v. Simmons, which invalidated the use of capital punishment against juvenile offenders, should apply retroactively to undo a guilty plea made by Ronald Donald Dingle (“Dingle”). After examining the scope of the holding in Roper and the nature of plea bargains, the Fourth Circuit held that Roper cannot apply retroactively to undo a guilty plea and affirmed the lower court’s dismissal of Dingle’s petition.

Lower Courts Repeatedly Dismiss Dingle’s Petitions

In 1993 the state of South Carolina (the “State”) charged Dingle with murder, assault and battery with intent to kill, first degree burglary, kidnapping, pointing a firearm, two counts of possession of a weapon during a violent crime, and two counts of possession of a sawed-off shotgun. Because the State intended to pursue the death penalty, Dingle plead guilty in exchange for life imprisonment with the possibility of parole.

When it was later discovered that the consecutive nature of Dingle’s sentences precluded parole, an integral part of the plea bargain, Dingle filed an application for post-conviction relief (“PCR”). The PCR court vacated his sentences and remanded for sentencing consistent with the intent of the plea agreement or for a new trial.

Several years later, a hearing still had not been held, so Dingle filed a motion for a speedy trial. The hearing was then held on July 28, 2005, and Dingle contended that his guilty plea should be withdrawn. He argued that the benefit of his plea bargain, avoiding the death penalty, was removed by the Supreme Court’s recent decision in Roper, which held that it was a violation of the Eighth Amendment for the death penalty to be used against juvenile offenders. The Court of General Sessions disagreed, rejecting Dingle’s request for a new trial and holding that pleas should be evaluated based on the law that existed in 1995. The South Carolina Supreme Court affirmed this decision, finding that Roper did not remove the benefit of the plea bargain.

Dingle again filed an application for PCR in 2009, arguing that Roper retroactively applied to his case and, as such, his guilty plea was involuntary because it was made to avoid cruel and unusual punishment. However, the PCR court found that Dingle’s claim was barred by res judicata. Dingle’s subsequent appeal and third petition were unsuccessful.

Dingle also filed a petition for a writ of habeas corpus under 28 U.S.C. § 2554 in the United States District Court for the District of South Carolina. He raised four claims of error, but the district court dismissed the claims without prejudice.

On September 13, 2013, Dingle filed the instant § 2554 petition. The petition contested Dingle’s conviction on six grounds, but the district court adopted the magistrate judge’s recommendation to deny the petition in its entirety.

Issues on Appeal

The Fourth Circuit granted a certificate of appealability to determine the single issue of whether Roper may be applied retroactively to invalidate Dingle’s guilty plea. Dingle argued that the holding in Roper invalidated his guilty plea because (1) it was a substantive rule so applied retroactively to his case, and (2) if it would be improper for the state to seek the death penalty against him now, then it was also improper in 1995. Thus, his plea was invalid because it was attempt to avoid cruel and unusual punishment. However, the Fourth Circuit disagreed, concluding that (1) plea bargains are outside the scope of the Roper holding, and (2) the nature of plea bargains support upholding their validity.

Plea Bargains Are Outside the Scope of Roper

The Fourth Circuit first concluded that the holding in Roper was never intended to apply to plea bargains. Although the court conceded that Roper was indeed a substantive rule that could be applied retroactively, it found that the scope of the rule was limited to the actual sentence delivered in a case. Because Dingle did not actually receive the death penalty, attempting to apply the holding in Roper to his own case was “compar[ing] apples and oranges.” The court further noted that the Supreme Court had never before allowed “a substantive rule to stretch beyond the proscribed sentence to reopen guilty pleas with a different sentence.”

Future Legal Developments Cannot Invalidate Plea Bargains

The Fourth Circuit next concluded that the holding in Roper could not invalidate Dingle’s guilty plea because plea bargains are “a bet on the future,” whereby defendants accept both the benefits of a lighter sentence and the risks of losing out on future favorable legal developments. A defendant’s remorse at missing out on those favorable legal developments is not enough to rescind an entire bargain.

The court found support for this contention in Brady v. United States, where the Supreme Court held that a defendant who entered into a plea agreement to avoid capital punishment could not later withdraw his plea agreement when subsequent legal developments made him ineligible for the death penalty. The Supreme Court suggested that defendants who are offered plea bargains must weigh the benefits and risks of such bargains, and the fact that they did not anticipate certain legal developments could not “impugn the truth or reliability of [their] plea.” Accordingly, the Fourth Circuit concluded that when Dingle entered his guilty plea, he accepted the trade-off between present benefits and future risks that is “emblematic” of plea bargains, and his inability to anticipate the favorable outcome in Roper could not invalidate his plea.

Conclusion

The Fourth Circuit concluded that (1) Roper, even applied retroactively, could not invalidate Dingle’s plea, and (2) precedent and policy argued against setting aside Dingle’s plea bargain. Accordingly, it affirmed the district court’s dismissal of Dingle’s petition and held that Roper could not be applied retroactively to invalidate Dingle’s guilty plea.

By Malorie Letcavage

On March 30, 2016, the Fourth Circuit released its published opinion in the criminal case of U.S. v. Under Seal Defendant. The Defendant was a juvenile and federal law prohibits the public release of that juvenile’s name in association with the proceedings, so the juvenile was referred to as Defendant. Defendant was charged with murder in aid of racketeering in violation of 18 U.S.C. §1959(a)(1). This statute has a mandatory sentence of either death or life imprisonment. The government filed a motion in the district court to transfer the Defendant for prosecution as an adult for this offense. The district court denied the motion because the prosecution would be unconstitutional. The government appealed, and the Fourth Circuit affirmed, agreeing with the lower court that it would be against precedent and the constitution to sentence juvenile offenders to death or life imprisonment.

District Court Denied Motion for Transfer

The government’s motion for transfer was based on 18 U.S.C. § 5031, which removes juveniles from the ordinary criminal process. The act allows juveniles who are fifteen years old and above to be transferred from juvenile status if they have committed certain crimes and the transfer would be in the interest of justice. The court consider factors such as age, social background, nature of offense, and prior record in determining whether to transfer the juvenile.

In this case, Defendant was a few months shy of being eighteen when he participated in a gang-related murder. After the government’s motion to transfer the defendant, Defendant opposed the motion arguing that Supreme Court decisions held that juvenile offenders could not be sentenced to death or mandatory life imprisonment. Despite the interest of justice factors supporting a transfer, the district court agreed with Defendant that it would be unconstitutional to transfer and impose either of those mandatory sentences.

The court reviewed the recent court cases on point, stating that Roper v. Simmons held that juvenile offenders could not be sentenced to death, while Graham v. Florida prohibited sentencing juvenile offenders to life in prison without parole for non-homicide offenses. In Miller v. Alabama, the Court held that juveniles could not be sentenced to life without parole for all but the rarest cases where juveniles were irreparably corrupt. 18 U.S.C. §1959, which Defendant is charged under, only authorizes death or life imprisonment as punishments but the case law does not allow these punishments for a charge of murder in aid of racketeering.

Severability and Combination of Penalties Not Allowed 

The government posited the argument that the statute could be read to sever the problematic portions. The court explained that if legislation can function independently after an unconstitutional portion is severed, then it could be saved. The court found that the defining feature of a criminal statute is its punitive effect, and that if the unconstitutional punishments are removed from 18 U.S.C. §1959 there is no penalty provision. This lack of a penalty in a criminal statute invalidates it, and thus the statute cannot function independently.

The government also suggested that the statute could be restructured so that the punishment for kidnapping in aid of racketeering could be applied to murder in aid of racketeering, The Fourth Circuit soundly rejected this argument because to do so would be to overstep the judiciary’s role and trespass on the legislative role. The court refused to combine the penalties for two distinct criminal acts in the statute.

The Fourth Circuit also distinguished United States v. Booker by finding that nothing in that case allowed the judiciary to replace language in one provision with language not previously applied in a wholly separate provision. Booker looked to legislative intent in determining severability, but in this case there was no legislative intent available.

Government’s Arguments Rejected 

Furthermore, the court found that combining the penalties would violate due process. One of the notions of fairness stemming from the Constitution is the right to notice of what conduct is illegal and how severe the punishment for that conduct will be. The Fourth Circuit refused to look outside the boundaries of the statute for an alternative penalty since death and life imprisonment were not allowed because this would not give the Defendant fair notice of the punishment the crime would entail. The court held that it would not create new punishments outside of the authorized statutory punishments in the statute.

The court then distinguished other cases the government had relied on. It held that the cases cited did not give persuasive support because in this case the crime was committed after the Miller decision. It also held that other case law relied on only considered how to remedy a mandatory life sentence that was validly imposed at the time but later found to be unconstitutional, which was different than Defendant’s case. The court also rejected the government’s argument that its holding would cause the reversal of many convictions.

Fourth Circuit Affirms Denial of Motion to Transfer

The Fourth Circuit affirmed the district court’s decision to deny the government’s motion to transfer the Defendant to be tried as an adult. It held that because the charge had mandatory sentences that were prohibited when applied to juveniles, a transfer that would impose those sentences would be unconstitutional.

gavel-judge-court-410-l

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.

jail photo for blog

By Malorie Letcavage

On December 14, 2015, the Fourth Circuit released its published opinion in United States v. Lance Williams. The Court vacated the district court’s denial of Lance Williams’ motion for a reduced sentence under 18 U.S.C. §3582(c)(2). The Court’s opinion made it clear that when there is an amendment to the U.S. Sentencing Guidelines (“Guidelines”) that explicitly allows for retroactive effect, this overcomes case law precedent prior to the amendment.

District Court Denies a Sentence Reduction

In 2008, Williams plead guilty to distributing cocaine. The United States Attorney filed a motion for an enhanced penalty under 21 U.S.C. § 841(b)(1)(A) due to Williams’s prior drug conviction. Williams’ sentence was calculated but the enhanced penalty triggered the mandatory minimum sentence of 240 months. Before the sentencing hearing, the prosecutors filed a downward departure for the sentence based on William’s substantial assistance to the authorities, which reduced the sentence to 180 months.

Three years after the conviction and sentencing, Williams filed a pro se motion for a reduction under 18 U.S.C. §3582(c)(2) because of Guidelines Amendments 750 and 782, which were affected by Amendment 780. The district court, relying on United States v. Hood (“Hood“), denied this motion because Williams did not meet the criteria of §3582(c)(2) due to his sentence not being based on the Guidelines range, but instead being based on a statutory minimum and a reduction for substantial assistance.

Fourth Circuit Describes the Legal Framework

The Guidelines are the result of a commission created by Congress to help federal courts decide sentences. The commission is allowed to amend the Guidelines, and must clearly state if the amendments are to have retroactive effect. A sentence reduction is authorized only when an amendment has the effect of reducing the applicable guideline range. In order to determine if an amendment is applicable the Court uses a two-step test. First, the sentencing court must determine the prisoner’s eligibility for a detention modification, and then if he is eligible, the court can then determine the extent of the reduction.

The Fourth Circuit has recognized the power of the amendments to the Guidelines to override case law precedent because these amendments resolve disagreements among the courts of appeals. Thus, precedent in sentence reduction cases yields if it conflicts with the Guidelines amendments.

The Fourth Circuit’s decision to deny a sentence reduction in Hood was premised on the fact that the amendment Hood relied on had no impact on the statutory mandate or substantial assistance departure, which his sentence was based upon. Guidelines Amendment 780 was promulgated after Hood, and served to clarify that there is relief for prisoners who had been sentenced below statutory minimums as a result of substantial assistance motions.

Amendment 780 Precludes United States v. Hood

The Fourth Circuit found that Amendment 780 explicitly makes Williams eligible for a sentence reduction under 18 U.S.C. §3582(c)(2) because it has the practical effect of changing the law. It held that the logic in Hood does not apply.

The Court also held that the amendment helps to eliminate disparity because otherwise a cooperating defendant with a guideline range above the statutory minimum would get relief while a cooperating defendant, like Williams, whose guidelines range was below the statutory minimum would be denied relief. The Court’s ruling thus also helps the policy of rewarding cooperation with authorities.

Williams is Eligible for a Sentence Reduction

Amendment 780 was in effect before the district court ruled on Williams’ motion for sentence reduction. The district court was therefore required to apply Amendment 780 and substitute the retroactive portion. If the Guidelines calculation then reveals a lower range, the prisoner is eligible for a sentence reduction.

Amendment 780 would reduce Williams’ offense level from twenty-seven to twenty-one and thus lower his guideline range to seventy-seven to ninety-six months. Since this range is lower than the original, Williams is eligible for sentence reduction under 18 U.S.C. §3582(c)(2).

Conclusion

The Fourth Circuit reversed the lower court’s holding and remanded the case. It also made clear that while Williams is eligible for a reduction, the ultimate decision on amount of reduction is up to the sentencing court. Judge Traxler dissented because he believed only Congress, not the Guidelines, could change the sentencing departures. He also found Hood to be good law, and not completely in contradiction with Amendment 780. For these reasons, Judge Traxler did not think Williams was eligible for a sentence reduction.