Wake Forest Law Review
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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12Feb

One Year Sentence for Obstructing Justice Affirmed

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By Evelyn Norton

Today, in the criminal case of United States v. Meredith, an unpublished per curiam opinion, the Fourth Circuit affirmed the decision of the U.S. District Court for the Northern District of West Virginia sentencing Ms. Loretta Meredith to one year and one day of imprisonment.

Defendant Challenged the Sentence Imposed

The District Court found Ms. Meredith guilty of conspiring to knowingly and corruptly attempt to obstruct, influence, and impede an official proceeding, thus violating 18 U.S.C. § 1512(c)(2) and (k).

On appeal, counsel for Ms. Meredith argued that the District Court: (1) wrongly increased the base offense level for Ms. Meredith’s Guidelines range for substantially interfering with the administration of justice; (2) clearly erred in increasing the base offense level for Ms. Meredith’s Guidelines range because the offense was extensive in scope, planning, or preparation; and (3) imposed an unreasonable sentence.

The Fourth Circuit reviewed the District Court’s factual findings for clear error and legal conclusions de novo.

Defendant Did Substantially Interfere with the Administration of Justice

First,  the Fourth Circuit considered whether the District Court wrongly increased the base offense level for Ms. Meredith’s Guidelines range for substantially interfering with the administration of justice.  The Court observed that the U.S. Sentencing Guidelines Manual § 2J1.2 comment 1 states that “substantial interference with the administration of justice” includes “unnecessary expenditure of substantial governmental or court resources.”  Here, the Court found that the record showed that significant government resources were invested to resolve Ms. Meredith’s attempts to obstruct justice.  Thus, the Court concluded that the District Court properly increased Ms. Meredith’s offense level.

 Defendant’s Attempts to Obstruct Justice Were Extensive

Second, the Fourth Circuit considered whether the District Court clearly erred in increasing the base offense level for Ms. Meredith’s Guidelines range because the offense was extensive in scope, planning, or preparation.  Upon review of the record, the Court concluded that Ms. Meredith’s attempts to obstruct justice were, in fact, extensive in scope, planning, or preparation.  Thus, the Court held that the District Court also properly applied the sentencing enhancement.

Defendant’s Sentence Is Reasonable

Third, the Fourth Circuit considered whether the District Court abused its discretion in imposing an unreasonable sentence.  The Court found that Ms. Meredith’s sentence was not procedurally unreasonable because the District Court properly calculated the Guidelines range and considered the appropriate factors.  Furthermore, the Court found that Ms. Meredith failed to meet the defendant’s burden to rebut the presumption on appeal that the sentence was substantively unreasonable.  Thus, the Court concluded that the District Court did not impose an unreasonable sentence.

Holding

The Fourth Circuit affirmed the District Court’s decision sentencing Ms. Meredith to one year and one day of imprisonment for conspiring to knowingly and corruptly attempt to obstruct, influence, and impede an official proceeding.

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11Feb

Prior Bad Acts Held Admissible to “Complete the Story”

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By Joshua P. Bussen

Yesterday, February 10, 2015, in the criminal case of United States v. McGee, in an unpublished opinion, the Fourth Circuit affirmed the decision of the District Court for the Northern District of West Virginia convicting the defendant, Michael McGee, of conspiracy to possess cocaine with intent to distribute.

 Defendant Cries Foul on Multiple Issues

McGee was convicted by a jury of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(b)(1)(C), 846 (2012). On appeal he claimed that: (1) the district court erred in admitting evidence pursuant to Federal Rule of Evidence 404(b); (2) there was insufficient evidence to convict him; (3) the district court violated McGee’s constitutional right to be present during discussion and formulation of a response to a jury question during deliberations; (4) the district court erred in designating McGee a career offender; and (5) the district court erred in applying a two-level enhancement to his sentence for obstruction of justice.

 Prior Bad Acts are Admissible to Complete the Story of McGee’s Conspiracy

McGee claimed that the district court violated Federal Rule of Evidence 404(b) by allowing presentation of evidence to the jury of five controlled buys in November 2012 by a government informant. He claimed the prosecution was using these previous bad acts to “pollute the waters” of his conspiracy charge, because the acts were too remote in time and geography to be relevant.

The Fourth Circuit first held that the prior bad act evidence was relevant because it tended to prove that McGee was in fact a part of an illegal conspiracy.  Fed. R. Evid. 401.  It then determined that the evidence was not barred by 404(b). Rule 404(b) prohibits the admission of “[e]vidence of a crime, wrong, or other act . . . to prove a person’s character in order to show that on a particular occasion the person acted in accord with the character.” The rationale for this rule is that the cards are already stacked against the defendant and juries are apt to punish defendants for their previous crimes. However, evidence of other bad acts may be introduced for another purpose, including if it concerns “acts intrinsic to the alleged crime.” Here, the Fourth Circuit held that the prior buys were necessary to complete the story and were necessary to prove the defendant was involved in a conspiracy, and thus did not run afoul Rule 404(b).  Finally, the court found that the probative value of this evidence was not “substantially outweighed by a danger of . . . unfair prejudice,” and was thus admissible.  Fed. R. Evid. 403.

There Was Sufficient Evidence to Convict McGee

McGee next claimed that the jury had insufficient evidence to convict him. Generally, “[t]he jury verdict must be sustained when there is substantial evidence in the record, when viewed in the light most favorable to the government, to support the conviction.” The Fourth Circuit dismissed this argument easily, finding that the record held ample evidence of the defendant’s, and his coconspirator’s, cocaine trade.

 McGee’s Absence During a Jury Question did not Constitute Reversible Error

The defendant next claimed that the district court violated his constitutional right to be present during discussion and formulation of a response to a jury question during deliberations. Federal Rule of Criminal Procedure 43 provides that a defendant has the right to be present at every stage of trial, including when the judge communicates with the jury. However, in this case, the Fourth Circuit found that although the defendant was absent during a portion of a discussion regarding a jury question, that he was not gone for long, that the court had the record read back to him and then continued with the bulk of the conversation in his presence, and that the defendant only raised the issue on appeal. Therefore there was no reversible error.

 McGee Was Properly Considered to be a “Career Offender,” Which Made the Two-Level Enhancement Irrelevant

Finally, McGee claimed that the district court committed reversible error in designating McGee as a career offender and also for applying a two-level sentencing enhancement for obstruction of justice. The Fourth Circuit found that the career offender designation warranted a higher punishment than the two-level enhancement, rendering the enhancement moot.

As to the career offender issue, the record showed that McGee had been arrested for aggravated robbery in 1989, and for drug trafficking in 2004 and 2009. The federal sentencing guidelines hold that “a defendant is a career offender if he was at least eighteen years old at the time of the instant offense, the instant offense is a drug felony or crime of violence, and the defendant has at least two prior felony convictions for drug offenses or crimes of violence.” McGee was older than eighteen at the time of this offense and each of his three prior convictions qualified for the higher sentencing guideline; therefore, the Fourth Circuit dismissed this claim as well.

Because the Fourth Circuit found no reversible error, the conviction of Michael McGee was affirmed.

 

 

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