Wake Forest Law Review
20Mar

Cookie Cutter Sentencing Requires Explanation

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By Andrew Kilpinen

On Wednesday, March 18, 2015, in a published opinion U.S. v. Xavier Lymas, the 4th Circuit reversed and remanded three sentencing decisions from the Eastern District of North Carolina for failing to provide adequate explanations for why it varied from sentencing guidelines and not imposing individualized sentences and explanations.

Defendants Indicted for Convenience Store Robbery Spree

Defendants Xavier Lymas (“Lymas”), Lionel Newman (“Newman”), and Jessie Gomez (“Gomez”) were named in an eight-count indictment for a string of armed convenience store robberies in 2011. Between October 27 and October 30, a mixture of the three defendants succeeded at robbing two convenience stores, and failed at robbing two other convenience stores. Two .38 caliber handguns were used in all four attempts, and the spree included one store clerk receiving a pistol-whip to the back of the head.

District Court Colorfully Rejected Sentencing Guidelines and Imposed Identical Sentences

The district court judge likened sentencing guidelines to an ostrich sticking its head in the sand. The judge stated that all three defendants should receive an identical sentence in spite of the fact that each individual’s pre-sentence report recommended different sentences. Based on the violence of the crime, the threat to society, and the random introduction of violence into a commercial setting, the judge concluded that the sentencing guidelines underrepresented justice and sentenced all three defendants to a 200-month sentence. Defendants appealed claiming that the sentences were procedurally and substantively unreasonable.

4th Circuit Finds Procedural Error in Judge’s Failure to Explain Sentences

The 4th Circuit reviewed defendant’s sentences using an abuse-of-discretion standard under 18 U.S.C. §3553(a). The Court agreed with defendant’s argument that the district court committed procedural error because it offered no individualized rationale to justify the sentences it imposed. Specifically, the Court found that the lower court judge failed to sufficiently explain why it rejected the guidelines, and also failed to explain why it applied a “cookie-cutter” approach to sentencing the three defendants.

The 4th Circuit vacated the sentences and remanded the case for re-sentencing.

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17Mar

Kings’ Convictions Upheld

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By Caroline Daniel

In United States v. Cornell, a published opinion released yesterday (March 16), the Fourth Circuit affirmed the convictions of three members of the Greensboro tribe of the Latin Kings.

Defendants Assert Multiple Errors by Prosecution

Co-defendants Jorge Cornell (a.k.a King Jay), Ernesto Wilson (a.k.a. King Yayo), and Russell Kilfoil (a.k.a. King Peaceful) (collectively “Defendants”) were charged with and convicted of conspiracy to violate the Racketeering Influenced and Corrupt Organizations Act (“RICO”).  18 U.S.C. § 1962.  Defendants made several claims of error in their appeal, mainly arguing that the district court improperly instructed the jury and that the prosecution lacked sufficient evidence to convict them of violating RICO.

Kings’ Conspiracy in Greensboro

Centered in Chicago and New York City, the Latin Kings is a gang with localized branches or “tribes” throughout the country.  The Fourth Circuit noted that “central to the organization is a culture of violence” as well as the “various illegal activities its members undertake.”

Defendants were key leaders in the Greensboro tribe and were charged (along with other gang members not included in this appeal) with violating 18 U.S.C. § 1962(d) by “knowingly and intentionally conspir[ing] to conduct and participate, directly and indirectly, in the conduct of the affairs of [a criminal] enterprise through a pattern of racketeering activity.”  During their trial, the prosecution presented evidence of the defendants’ conspiracy to commit murder, armed robbery, and fraud, among other illegal activities.  The defendants were individually found guilty: Cornell was sentenced to 336 months; Wilson was sentenced to 204 months; and Kilfoil was sentenced to 180 months.  Following their sentencing, they filed this appeal.

“Minimal” Jury Instructions Were Reasonable

First, the defendants argued that the trial judge erroneously instructed the jury that the prosecution had to prove that the conspiracy “affected interstate or foreign commerce in any way, no matter how minimal.”  The district court based this instruction on the Fourth Circuit’s earlier decision in United States v. Gray, but the defendants argued that RICO requires more than a minimal affect on foreign commerce, citing the Sixth Circuit’s decision in Waucaush v. United States.  In Waucaush, the Sixth Circuit held that an illegal conspiracy must have a “substantial effect” on interstate commerce to violate RICO.

The Fourth Circuit noted that it is not bound by the Waucaush decision and “doubt[ed] its validity.”  Further, the Court explained that the Waucaush holding was “limited to cases ‘where the enterprise itself did not engage in economic activity.'”  Here, the prosecution presented “ample” evidence of the Latin Kings’ economic activity, including bank fraud and various other scams.  The Fourth Circuit determined that this was sufficient to determine that the Waucaush reasoning should not apply here, and, accordingly, found that the district court’s jury instructions were reasonable.

Prosecution Presented More Than Sufficient Evidence

Additionally, the defendants claimed that the evidence of bank fraud was insufficient to show that the conspiracy affected interstate commerce.  The Fourth Circuit disagreed, but held that even if the bank fraud were considered insufficient, the prosecution presented ample other evidence to satisfy the “de minimis” interstate commerce requirement.  The Court held that evidence that the Latin Kings communicated about their conspiracies via phones and evidence that they committed robberies using guns that traveled in interstate commerce were also sufficient to satisfy the requirement.

Fourth Circuit Finds no Error in Conviction

Reviewing the district court’s decision, the Fourth Circuit found “no reversible error,” and, subsequently affirmed the defendants’ convictions.  The defendants appealed on several other joint and individual grounds, but the Fourth Circuit affirmed each of their convictions.

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6Mar

Presentence Reports Insufficient to Attribute Drug Quantities in a Conspiracy

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By Lauren D. Emery

On March 3, 2015, in the published criminal opinion, U.S. v. Flores-Alvarado, the Fourth Circuit vacated and remanded for re-sentencing the district court’s conviction against Marco Antonia Flores-Alvarado’s (“Flores-Alvarad0”).  Flores-Alvarado had previously plead guilty to a charge for conspiracy to distribute 5 kilograms or more of cocaine and 1000 kilograms or more of marijuana–for which he was sentenced to life imprisonment– and possession with intent to distribute more than 100 kilograms of marijuana–for which he was sentenced to a concurrent term of 480 months.

Quantity of Drugs Seized in Conspiracy Attributed to Flores-Alvarado

Flores-Alvarado and his co-defendant ran two drug trafficking organizations in North Carolina and used multiple sources in Mexico and the U.S. for marijuana and cocaine.  Due to his involvement in a conspiracy with his co-defendant, Flores-Alvarado was credited with trafficking 31,111.16 kilograms of marijuana which was seized from homes in Stokesdale, North Carolina and Lexington, Kentucky.

Because of the amount of drugs seized, his presentence report (“PSR”) assigned him a base level offense of 38, which after adjusting for additional factors, became an offense level of 43.  As a result of this level, and his Category II criminal history, the advisory sentencing range for both of his crimes was life imprisonment–but since the maximum sentence for the possession charge for 40 years it became 480 months.  If the drug quantities involved in the two home seizures were excluded, his offense level would drop to 41 and his sentencing range to 360 months to life.  During the lower court proceedings, the “government did not call any witnesses or present any other evidence about the drug quantities or the Stokesdale and Lexington Seizures.”

Presentence Reports are not Suffiicnet Evidence of Quantity of Drugs Trafficked by Defendant

The Fourth Circuit held that the information contained in the PSR is insufficient in and of itself to attribute the seized quantities of marijuana to Flores-Alvarado.  Instead, additional evidence must be presented to allow the court to make that factual determination.

Attributing Drug Quantities in a Conspiracy Inolves Specific Evidentiary Requirement

The Fourth Circuit reviews factual determinations of a sentencing court for clear error.  Here, it held that the dispute over the drug amounts seized in Lexington and Stokesdale “were not mere quibbles over the PSR’s drug totals, but were specific and factually grounded enough to raise legal and factual questions about whether the event described in the PSR supported attributing the seized quantities to Flores-Alvarado.”  This factual issue was left unresolved by the district court.

The Fourth Circuit held that, in order to attribute the “acts of others in jointly-undertaken criminal activity” the State would need to prove the scope of Flores-Alvarado’s agreement to the conduct and the foreseeability of the conduct.  The court declared that the district court had failed to make any such findings regarding Flores-Alvarado’s agreement to jointly undertake this criminal activity and that the PSR alone is insufficient to attribute the amounts from the two seizures to him.

Sentence Vacated and Remanded for Re-Sentencing

On remand, the district court must make specific factual determinations regarding Flores-Alvarado’s “agreement to jointly undertake criminal activity and whether those drug quantities were reasonably foreseeable to Flores-Alvarado.”

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5Mar

Fourth Circuit Upholds Life Sentence For Juvenile Defendant In Light of New Supreme Court Precedent

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By Michael Mitchell

Today, in the criminal case of Johnson v. Ponton, a published opinion, the Fourth Circuit affirmed the decision of the District Court for the Eastern District of Virginia, upholding the petitioner’s sentence of life imprisonment without parole for a capital murder and rape conviction.

Petitioner Challenges Life Sentence Based on New Supreme Court Precedent

The Fourth Circuit considered whether the district court’s dismissal of the petitioner’s habeas corpus petition challenging his life sentence.  The court evaluated whether the rule announced in the Supreme Court case Miller v. Alabama can apply retroactively on collateral review.

Mandatory Life Imprisonment Without Parole for Rapist & Murderer

The petitioner Shermaine Ali Johnson was convicted of capital murder and rape in 1998 at the age of sixteen.  Johnson was found guilty, and given his two prior rape convictions, two separate juries imposed the death sentence in spite of the his age.  However, the Supreme Court of Virginia commuted Johnson’s sentence to life imprisonment without the possibility of parole because he was under eighteen.  His conviction and sentence became final in 2005, and seven years later, the Supreme Court decided Miller v. Alabama, prompting Johnson to petition for collateral review in 2013.

Mandatory Life Sentence Without Parole for Children Violates the Eighth Amendment

In Miller v. Alabama, the Supreme Court held that mandatory life sentences without the possibility of parole imposed on a homicide offender who was under the age of eighteen at the time of the offense violates the Eighth Amendment.  The court was concerned with the inherent differences between children and adults in finding that the practice constituted cruel and unusual punishment, although the Miller rule stopped short of categorically barring the death penalty for children.

Judicial Stay Results in Supreme Court Clarification of Miller Rule

In 2014, the Fourth Circuit issued an abeyance pending the Supreme Court’s decision in Toca v. Louisiana, which would clarify whether the Miller rule could be applied retroactively.  However, the Supreme Court subsequently dismissed the writ of certiorari pursuant to the parties’ stipulation.  Instead, the Fourth Circuit relied on Miller‘s companion case, Jackson v. Hobbs.  In accord with Jackson, the court recognized that “an express holding a rule is retroactive, rather than mere application of the rule, is required to establish retroactivity.”  The Fourth Circuit found that the Arkansas Supreme Court’s application of the rule did not constitute an express holding, and therefore, that retroactive application of the Miller rule was not intended.

District Court’s Decision Affirmed by Fourth Circuit

The Fourth Circuit affirmed the district court’s judgment denying the petitioner’s challenge to his life sentence without parole, holding that the Miller rule cannot be applied retroactively in collateral review.

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27Feb

Review of Sentencing Moot

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By Kaitlin Price

On February 25, 2015, in an unpublished opinion of the criminal case, United States v. Robinson the Fourth Circuit dismissed the appeal as moot in regards to the sentencing challenge and affirmed the district court’s judgment.

Robinson’s Sentence Was Already Served 

Tyanna Robinson appealed the district court’s judgment which revoked her supervised release and sentenced her to 10 months imprisonment with an additional 12 month supervised release to follow. However, during the time in which the case was pending Robinson was released from prison and began serving her supervised release.

No Live Issue For Appeal 

The Fourth Circuit explained that because Robinson had already served her ten month imprisonment sentence the issue on appeal was moot. The Fourth Circuit explained that there must be “a live case or controversy” in order for the court to have Article III jurisdiction. The Court explained that the issue of whether the ten month sentencing was improper is moot because there was no longer a “live case or controversy.” The Court did address whether the district court’s decision to revoke supervised release and impose additional supervised release following the ten month sentencing was proper. The Fourth Circuit reviewed the record and found no meritorious issues for appeal.

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25Feb

Twelve Years Not Unreasonable for Crack Cocaine Distributor

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By Joshua Bussen

Today, February 25, 2015, in an unpublished decision of the criminal case United States v. McCollum, the Fourth Circuit affirmed the decision of the District Court for the District of South Carolina—convicting Makum Lamont McCollum of distributing crack cocaine and sentencing him to 151 months in prison.

The Anders v. California Issue

McCollum appealed his conviction pursuant to Anders v. California, 386 U.S. 738 (1967).  Under that precedent, a defendant may state that despite having no meritorious grounds for appeal, the appellate court should review whether the district court complied with Federal Rule of Criminal Procedure 11, and whether the district court’s sentence was reasonable.

The Conviction Complied with Fed. R. Crim. Pro. 11 and the Sentence Was Reasonable

At trial, McCollum did not move to withdraw his guilty plea nor did he object in any way—therefore the Fourth Circuit reviewed the Rule 11 issue under the high standard of plain error; finding that the district court fully complied with the rule.

McCollum also requested the Fourth Circuit review the district court’s sentence for reasonableness; which the Fourth Circuit reviewed under the deferential abuse of discretion standard.  The reasonableness of a sentence has both substantive and procedural elements.  First, the Fourth Circuit found the district court committed no procedural error.  The district court properly calculated the sentence using the Sentencing Guidelines, considered all of the 18 U.S.C. § 3553(a) (2012) factors, and explained the sentence correctly.  The district court also found no substantive error because: under the totality of the circumstances the Fourth Circuit found the sentence was within the Sentencing Guidelines; McCollum’s conduct was serious and thus warranted a longer sentence; and nothing in the record suggested the judge acted irrationally—therefore the sentence was not unreasonable.

151 Months Was Not an Unreasonable Sentence for McCollum

Finding no error in the trial court’s sentence, the Fourth Circuit affirmed the sentence of 151 months.

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24Feb

120 Months not Unreasonable for Heroin Distribution

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By Caroline E. Daniel

Today, in United States v. Thomas, an unpublished criminal opinion, the Fourth Circuit affirmed Defendant Demetrius Thomas’ (“Thomas”) conviction and sentence.

Thomas Questions Validity of plea and Length of Sentence

Thomas pled guilty to a violation of 21 U.S.C. § 841(a)(1) for distributing heroin, for which he was sentenced to 120 months.  He appealed, arguing that he did not enter into his guilty plea knowingly, that the sentence was unreasonable, and that his counsel had been ineffective.

Fourth Circuit Finds that Thomas Knowingly pled Guilty

Because he did not move to remove his guilty plea in district court, the Fourth Circuit reviewed Thomas’ guilty plea for plain error.  In reviewing the record, the Court determined that the district court had performed a proper plea colloquy, satisfying Rule 11.  The Court found that Thomas had been given the opportunity to give sworn statements, which reflected that his plea was “knowing, voluntary, and supported by a sufficient factual basis.”

Thomas’ Sentence was not Unreasonable

The Court reviewed both the procedural and substantive reasonableness of Thomas’ sentence under a “deferential abuse of discretion” standard.  The Fourth Circuit found that the lower court had satisfied both procedural and substantive requirements.

First, in terms of procedure, the Fourth Circuit held that the lower court had: (1) properly calculated Thomas’ sentencing range; (2) considered Thomas’ arguments for a lesser sentence; (3) considered the factors required by 18 U.S.C. § 3553(a); and (4) properly explained its analysis of those factors.  Next, the Fourth Circuit considered whether the sentence was substantively reasonable.  The Court explained that there is a presumption that a sentence within the Sentencing Guidelines range is reasonable, and that here, Thomas had not overcome that presumption.

Fourth Circuit Finds no Evidence of Ineffective Counsel

Finally, the Fourth Circuit found no evidence of ineffective counsel in the record.  The Court held that, even if counsel had been ineffective in some capacity, it would have been proper to raise this issue in a motion pursuant to 28 U.S.C. § 2255.  Thus, the Court dismissed this claim without merit.

Fourth Circuit Affirms both Verdict and Sentence

After analyzing each of Thomas’ concerns, the Fourth Circuit affirmed the district court’s decision.  Accordingly, Thomas was guilty of distributing heroin, and his sentence of 120 months stands.

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19Feb

Fourth Circuit Affirms Enhanced Sentence Under Armed Career Criminal Act

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By Michael Mitchell

Today, in the criminal case of United States v. Doe, an unpublished per curiam opinion, the Fourth Circuit affirmed the decision of the District Court for the Western District of North Carolina, upholding the defendant’s conviction and sentence for possession of a firearm by a convicted felon.

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

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

Enhanced Sentence for Repeat Offender

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

District Court Has Discretion to Determine Qualification

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

Three Prior Convictions Within District Court’s Discretion

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

District Court’s Determination Affirmed by Fourth Circuit

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

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18Feb

Fourth Circuit Affirms Reasonableness of Revocation Sentence

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By Patrick Southern

Today, in an unpublished per curiam opinion, the Fourth Circuit affirmed the revocation sentence imposed by the District of South Carolina in the case of United States v. Mayberry. The court held that the appropriate criminal sentencing guidelines were followed, and that the district court’s sentence was both procedurally and substantively reasonable.

Mayberry’s Counsel Argued the District Court Committed Procedural or Substantive Error in Sentencing

This case arose from the revocation of Kevin Mayberry’s supervised release for a prior crime. Upon that revocation, the District of South Carolina sentenced him to nine months in jail, followed by 27 additional months of supervised release.

While Mayberry did not take advantage of his opportunity to file a pro se supplemental brief, his counsel argued on appeal that the sentence violated standards for procedural and substantive reasonableness.

District Courts Have Broad Discretion When Imposing Sentences Upon Revocation of Supervised Release

The Fourth Circuit noted that revocation sentences are to be affirmed if they fall within the prescribed statutory range and are not “plainly unreasonable.” Broad discretion is afforded to the district court in tailoring such sentences.

On appeal, the court must first determine if the sentence imposed is procedurally or substantively unreasonable. It does so by applying the same considerations used in review of original sentences. Still, this is a deferential review compared to the reasonableness review for original sentences. The appellate court must first find the sentence unreasonable, then go further to determine if it is “plainly” so.

The Sentence Was Not Procedurally or Substantively Unreasonable

Supervised release revocation sentences are procedurally reasonable if the district court considered the Sentencing Guidelines policy statements found in Chapter Seven of the Guidelines, as well as the factors in 18 U.S.C. § 3553(a) which are relevant to revocation sentences.

The district court must provide a statement of reasons for the sentence imposed, but it need not be as detailed or specific for revocation sentences as for post-conviction sentences. The Fourth Circuit also noted that the district court doesn’t have to strictly follow the exact language of § 3553(a), but the reasons given for the sentence must merely be able to matched to a factor appropriate for consideration under that statute (and tied to the defendant’s situation).

Revocation sentences are considered substantively reasonable if the district court stated a proper basis for concluding the defendant should receive whatever sentence is imposed, up to the statutory maximum. Sentences within the properly-calculated policy statement range are presumed to be substantively reasonable.

Here, the District of South Carolina considered the proper advisory policy statement range and arguments from counsel and Mayberry before sentencing him at the top of the policy statement range. The Fourth Circuit indicated that even though the explanation given was not detailed or lengthy, it expressed the court’s opinion that Mayberry had abused the court’s prior leniency by neglecting his restitution obligation, and that a tough sentence was necessary to sanction his breach of trust.

Mayberry’s Sentence Is Affirmed

Because the Fourth Circuit could not find any unreasonableness, plain or otherwise, in Mayberry’s sentence, it was affirmed.

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16Feb

District Court Committed No Error in Revoking Supervised Release

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By Marcus Fields

Last Thursday, in United States v. Hill, an unpublished decision, the Fourth Circuit affirmed the District Court for the District of South Carolina’s revocation of Larry Hill’s release. The Fourth Circuit found that each of Hill’s five contentions on appeal were without merit.

The district court found that Hill violated his supervised release by retaliating “against a federal judge and federal law enforcement officers by making false claims, in violation of 18 U.S.C. § 1521.” The court then revoked said release, sentenced Hill to ten months in prison, and continued him on supervised release for two years. Hill appealed this decision citing five alleged errors by the district court.

District Court Proceedings did not Violate Due Process

Hill first claimed that the district court erred by depriving him of due process. Reviewing this allegation de novo, the Fourth Circuit found that the record indicated that Hill received appropriate due process. It noted that Hill “received a full hearing, was permitted to confront his accusers, and was given notice of the charges via the supervised release revocation report.”

Hill Waived Right to Appeal Denial of his Motion to Dismiss

The Fourth Circuit next noted that because Hill did not “address the district court’s grounds for denying his motion to dismiss” he forfeited the issue on appeal.

District Court Did Not Abuse Its Discretion in Denying Requests for Witness Subpoenas

Hill next claimed that the district court erred in denying his requests for witness subpoenas. The Fourth Circuit reviewed this denial for abuse of discretion, but reviewed whether this denial violated Hill’s right to confrontation de novo. Because “supervised release revocation hearings are not ‘criminal prosecutions’ under the Sixth Amendment, the Fourth Circuit has previously held that defendants in such hearings are only entitled to the right of confrontation found in Fed. R. Crim. P. 32.1(b)(2)(C). Regardless, the Fourth Circuit found that “Hill was afforded a full opportunity to confront his accusers.”

District Court Did Not Abuse Its Discretion in Denying Motion for Recusal

Hill next claimed the district court erred in denying his motion for recusal. Citing 28 U.S.C. § 455, the Fourth Circuit explained that a judge should recuse herself “in any proceeding in which h[er] impartiality might reasonably be questioned; [w]here [s]he has a personal bias … or where she has a financial interest in the litigation.” Generally, the personal bias must come from outside the judicial proceeding and for a financial interest to be disqualifying the litigation at issue must substantially affect the interest.

Hill seems to contest that because “he was charged with attempting to file a false lien against the presiding judge,” the judge has a financial interest in the litigation. The Fourth Circuit notes that “no reasonable person would entertain” such an assertion, and even if the court were to consider it, the “‘interest’ is far too remote and speculative to necessitate recusal.”

District Court Did Not Abuse Its Discretion in Revoking Hill’s Release

Finally, Hill claimed that the district court lacked sufficient evidence to revoke his supervised release. The Fourth Circuit articulated that in order to revoke a supervised release, the district court must find by a preponderance of the evidence that the defendant violated a condition of the release. Reviewing for clear error, the Fourth Circuit concluded that “the district court did not commit clear error in finding, by a preponderance of the evidence, that Hill attempted to create a false liens” in violation of his supervised release.

Because the Fourth Circuit found no merit in any of Hill’s contentions, it affirmed the judgment of the district court.

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13Feb

Acceptance of Mens Rea Is Necessary For Acceptance-of-Responsibility Reduction

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By: Michael Klotz

Today, in the published opinion of United States v. Burns, the Fourth Circuit affirmed the decision of Judge Catherine Eagles of the District Court for the Middle District of North Carolina. A downward reduction in the sentence of a criminal defendant is disallowed when the defendant disputes the mens rea for the underlying crime, and thus fails to accept responsibility for relevant conduct.

Facts

On February 1, 2013, Mr. Burns was involved in an altercation with Eric Poole at a convenience store. Following the incident, Mr. Burns went to Mr. Poole’s house with a loaded gun, asked to find him, and fired a shot into the ceiling before leaving.

The next day, on February 2, 2013, Mr. Burns told his girlfriend, Brittney Wilson, that he intended to kill Mr. Poole. Later that day, Mr. Burns saw Mr. Poole in the driver’s seat of a parked car. Mr. Burns initially approached the car unarmed, but then returned to his car, told Ms. Wilson “I’m going to shoot him,” and retrieved his gun. Mr. Burns then told Mr. Poole “Motherfucker, I’m going to kill you.” After the occupant of the passenger’s seat exited the car, Mr. Burns fired a shot into the vehicle. The bullet did not hit Mr. Poole, who then exited the vehicle and fled on foot. Mr. Burns initially followed Mr. Poole in his vehicle, and fired a bullet into the air, but later halted his pursuit.

Mr. Burns was later arrested, on February 9, 2013, and charged as a felon in possession of a firearm. Mr. Burns pleaded guilty in a written plea agreement. The plea agreement stated that if the district court found Mr. Burns eligible for a two-level sentence reduction due to acceptance of responsibility for his conduct, and Mr. Burns’ total offense level was 16 or higher prior to that reduction, that the United States would request an additional one-level sentence reduction for timely assisting authorities with the investigation.

At His Sentencing Mr. Burns Denied That He Intended to Kill Mr. Poole, And Was Not Given a Sentence Reduction

At his sentencing, Mr. Burns stated that he had not intended to kill Mr. Poole when he fired a bullet into his car, and he disputed the testimony of Ms. Wilson. Mr. Burns argued that the downward trajectory of his shot demonstrated that he had not intended to shoot Mr. Poole, but rather to “give a warning shot.”

As a result, Mr. Burns contended that the sentencing guidelines for aggravated assault rather than for attempted murder should be cross-referenced in imposing his sentence. Thus, he claimed that the relevant sentencing guideline should be 70 to 87 months imprisonment rather than 92 to 115 months imprisonment.

Based upon these contentions, the government argued that Mr. Burns had refused to accept “relevant conduct,” and thus he was ineligible for the downward variance in his sentence due to acceptance of responsibility.

The District Court agreed. The court observed that there was strong evidence supporting attempted second degree murder, and in denying that he intended to kill Mr. Poole Mr. Burns had falsely denied relevant conduct. As a result, Mr. Burns was found to be ineligible for a sentence reduction. Based upon Mr. Burns’ criminal history, the appropriate sentencing range was 120 to 150 months imprisonment. The court imposed a sentence of 120 months, the statutory maximum under 18 U.S.C. § 924(a)(2). Mr. Poole subsequently filed the present appeal.

Does the Mens Rea of a Defendant Constitute “Relevant Conduct”?

The legal question on appeal was whether, in disputing that he had the mental state necessary for the uncharged crime of attempted murder, Mr. Burns rendered himself ineligible for a downward sentence reduction due to his refusal to accept responsibility for his crime. Pursuant to U.S.S.G. § 3E1.1(a), a defendant is only eligible for a sentence reduction when he “clearly demonstrates acceptance of responsibility for his offense.” An appropriate consideration in determining whether a defendant is entitled to a sentence reduction is whether he has “truthfully admit[ed] or not falsely den[ied] any additional relevant conduct for which the defendant is accountable.” Thus, the question before the court was whether a criminal defendant’s mental state during the commission of a crime constitutes “relevant conduct” at the time of the offense. If so, Mr. Burns’ claim that he did not intend to shoot Mr. Poole when he fired a bullet into his car would amount to his refusal to accept additional relevant conduct.

The Fourth Circuit Affirms the District Court Decision

The Fourth Circuit, in an opinion authored by Judge Allyson K. Duncan, affirmed the lower court decision that the mental state of a defendant at the time of the crime does constitute “relevant conduct.” The court observed that the sentencing guidelines do not provide a definition of “relevant conduct.” The relevant factors in determining “relevant conduct” include the “acts and omissions committed…by the defendant.” U.S.S.G. § 1B1.3(a)(1)(A). The mental state of a defendant at the time of a crime would arguably not be considered given that it is not a physical act. However, clear precedent in the Fourth Circuit forestalls this conclusion. Attempted crimes (for example, attempted murder or attempted sexual abuse) have been previously cross-referenced under the “acts and omissions” provision, and these crimes contain a mens rea element based on the mental state of the defendant. As a result, the court concluded that when Mr. Burns denied that his “acts and omissions” included shooting toward Mr. Poole with the intent of killing him, he denied relevant conduct and thus became ineligible for a sentence reduction. Based upon the foregoing reasoning, the judgment of the lower court was affirmed.

 

 

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12Feb

Fourth Circuit Affirms Denial of a Below-Guidelines Criminal Sentence

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By Diana C. Castro

Today, in the criminal case United States v. Santos Rios-Santos, the Fourth Circuit affirmed, in an unpublished opinion, the decision of the District Court for the Eastern District of North Carolina. The District Court denied the defendant’s request for a below-Guidelines sentence.

Defendant Argues for an Individualized Reason

Santos Rios-Santos contends that the District Court erred in failing to adequately provide an individualized reason explaining why it denied his request for a sentence below the advisory Guidelines.

Moreover, Santos Rios-Santos argues that the fact of his prior felony conviction should have been presented to a jury and proven beyond a reasonable doubt.

Defendant Pled Guilty to Illegal Reentry Into the United States Following a Conviction

Santos Rios-Santos pled guilty to illegal reentry into the United Stated after having been convicted of an aggravated felony in violation of 8 U.S.C. § 1236(b) (2012).   At his sentencing hearing before the District Court, the defendant’s attorney requested a sentence below the advisory Guidelines range of 24–30 months’ imprisonment. The District Court rejected the request and instead sentenced Santos Rios-Santos to 28 months. 

The Fourth Circuit Applies “Reasonableness” Standard

 The Fourth Circuit reviewed the sentence for procedural and substantive reasonableness. Following that determination, the court considered whether the District Court (1) applied the 18 U.S.C. § 3553(a) (2012) factors, (2) analyzed any arguments presented by the parties, and (3) sufficiently explained the selected sentence.

The District Court’s Explanation Was Sufficient Under Gall and Carter

 Looking for abuse of discretion, the Fourth Circuit reviewed both the procedural and substantive reasonableness of the defendant’s sentence. Gall v. United States, 552 U.S. 38, 46 (2007).

Having determined the District Court properly calculated the sentence under the Guidelines, the Fourth Circuit considered whether the District Court considered the 18 U.S.C. § 3553(a) (2012) factors, analyzed any of the parties’ arguments, and sufficiently explained the selected sentence. See Rita v. United States, 551 U.S. 338, 346–47; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Here, the court held that the District Court’s explanation was sufficient to show that it conducted the analysis necessary under Gall and Carter.

Finally, the Fourth Circuit reviewed the substantive reasonableness of the sentence “taking into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The court applied a presumption of correctness because the sentence was within the properly-calculated Guidelines range. Rita, 551 U.S. at 346–47.

Regarding the defendant’s argument that his prior conviction should have been presented to a jury and proven beyond a reasonable doubt, the Fourth Circuit points out that Santos Rios-Santos conceded that his argument is foreclosed by Almendarez-Torres v. United States, which held that a statute permitting an increased sentence based on a prior conviction is a penalty provision, not the element of an offense. 523 U.S. 224, 228–35. 239–47 (1998).

Court of Appeals for the Fourth Circuit Affirmed

Applying the reasonableness standard and the analysis under Gall and Carter, the Fourth Circuit affirmed the District Court’s selected sentence.

 

 

 

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