Wake Forest Law Review
11Feb

Weed Addiction Does Not Make Supervised Release Unreasonable

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By Andrew Kilpinen

Today, in an unpublished decision, the 4th Circuit affirmed a district court decision from the Western District of Virginia in U.S. v. Douglas Thomas, Jr.

 Mr. Thomas Sentenced to 5 Months in Prison and 4 Years Supervised Release

 The district court revoked Mr. Thomas’s supervised release for failing to comply with the terms of his release. Mr. Thomas was sentenced to an additional five months imprisonment and four years supervised release.

 Mr. Thomas Argued Impossible to Stop Smoking Marijuana

 The crux of Mr. Thomas’s appeal was that it was impossible for him to stop smoking marijuana. The terms of any supervised release includes not smoking marijuana. Therefore, according to Mr. Thomas, the district courts sentence including supervised release was substantively unreasonable.

 District Court’s Judgment Plainly Reasonable

 The Court was not persuaded that the sentence was substantively unreasonable. Pointing to the fact that Mr. Thomas failed to attend rehab during his supervised release, the Court found the district court’s decision to be “plainly reasonable.”

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10Feb

Defendant Lacks Requisite Showing for Appeal

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By Caroline Daniel

In United States v. Simmons, an unpublished criminal opinion released today, the Fourth Circuit denied Defendant Derrick Simmons’ (“Simmons”) application for a certificate of appealability on the dismissal of his 28 U.S.C. § 2255 motion.

Simmons Sought Certificate of Appealability

Simmons made a motion under 28 U.S.C. § 2255, which was dismissed by the district court for untimeliness.  The district court also denied Simmons motion for reconsideration.  Accordingly, Simmons sought to appeal these orders, which required the Fourth Circuit to grant a certificate of appealability based on 28 U.S.C. § 2253 (c)(1)(B).

Requirements for a Certificate of Appealability

In reaching its conclusion, the Fourth Circuit explained that there must be “a substantial showing of the denial of a constitutional right” in order for a certificate of appealability to be granted.  28 U.S.C. § 2253 (c)(2).  The standard for granting a certificate of appealability differs based on whether the motion was denied on substantive or procedural grounds.

In order to receive a certificate of appealability for a motion denied on substantive grounds, the appellant must show that “reasonable jurists” would find that the district court’s “assessment of the constitutional claims” to be problematic.  On the other hand, in order to receive a certificate of appealability for a motion denied on procedural grounds, the appellant must show that “both the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right.”

Simmons Lacked Requisite Showing – Certificate Denied

In this case, Simmons’ motions were denied on substantive and procedural grounds.  After studying the record, the Fourth Circuit found that Simmons had not met the required burden for either.  The Court denied his certificate of appealability, and declined to hear oral argument on the subject.

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6Feb

Waiver of Right to Appeal Bars Fourth Circuit Review

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By Kaitlin Price

Today, in United States v. Watson, an unpublished opinion, the Fourth Circuit dismissed Watson’s appeal after holding that Watson effectively waived his right to appeal.

Underlying Facts

Watson plead guilty to four counts of bank robbery in violation of 18 U.S.C. § 2113(a) (2012), and possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g), 924(e) (2012). In exchange, Watson received five concurrent 235 month sentences.  On appeal, Watson contended that the district court erred in applying a threat of death enhancement in calculating the offense level applicable to one of his robbery counts and effectively rendering his sentence unreasonable. The Government responded to Watson’s appellate arguments by seeking to enforce the appellate waiver provision in his plea agreement. After some consideration, the Court sided with the Government and dismissed.   

Standard for Legal Waiver of Appellate Rights

In United States v. Amaya-Portillo the Fourth Circuit explained that a defendant can waive his right to appeal so long as “waiver is a result of a knowing and intelligent decision.” A judge is not required for the district court judge to ask the defendant about his understanding of the effects of his waiver of a right to appeal, but instead the court must assess the totality of the circumstances to determine if the defendant had the knowledge to make an intelligent decision. The Fourth Circuit in Unite States v. General explained that the defendant’s experiences, conduct, educational background and familiarity with plea agreements are all factors that can be used to determine if the waiver is valid. The Court was clear that as long as the issue appealed is within the scope of the waiver, it will be enforced.

Here, the Fourth Circuit held that Watson’s waiver was valid because his waiver was knowing and intelligent. Further, the sentencing issue Watson attempts to raise was within the scope of the waiver, therefore the Fourth Circuit dismissed Watson’s appeal.

 

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6Feb

Showing Pornographic Videos Found on Defendant’s Computer Does Not Violate Rule 403

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By Lauren D. Emery

In U.S. v. Warrick, an unpublished criminal opinion released February 6, 2015 the Fourth Circuit affirmed the district court’s ruling regarding the admissibility of evidence under Rule 403.

Defendant Alleges Prejudice After Judge Admits Pornographic Video Clips

Marcus Warrick was sentenced to 180 months in prison followed by supervised release for life after being convicted of six counts of receiving child pornography.  Warrick argues that the district court abused its discretion by allowing the State to show clips from seven different pornographic videos found on his home computer, despite his offer to “stipulate that the videos met the definition of child pornography.”

Highly Deferential Review for District Court’s Decisions on Evidence Admissibility

Federal Rule of Evidence 403 states that relevant evidence should be excluded only when “substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”  In the context of Rule 403, prejudice refers to evidence which would tend to cause a trier of fact to make its decision based on an improper basis.  The Fourth Circuit confirmed that it applies a “highly deferential standard of review” in such matters and that “a trial court’s decision to admit evidence over a Rule 403 objection will not be overturned except under the most extraordinary circumstances, where that discretion has been plainly abused.”

Showing Clips of Pornography Found on Defendant’s Computer Does Not Violate Rule 403

In its review of the record, the Fourth Circuit held that the district court did not abuse its discretion in admitting the video tapes found on Mr. Warrick’s computer.

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5Feb

Fourth Circuit Upholds Appellate Waiver in Plea Agreement

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By Michael Mitchell

Today, in the criminal case of United States v. Tagle, 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 drug conviction and sentence.

Defendant Alleges Ineffective Assistance of Counsel

The Fourth Circuit considered the defendant’s challenge to his 138-month sentence for a drug conviction resulting from a plea agreement. The defendant alleged ineffective assistance of counsel because his attorney did not object to his waiver of appeal to his sentencing length in the plea agreement.

Guilty Plea Waives Right to Appeal

Armando Jiminez Tagle pleaded guilty to conspiracy to possess fifty or more grams of methamphetamine with the intent to distribute. The defendant believed that his 138-month sentence should be shortened based on the time that he spent in state custody before being transferred to federal court. As a result, he alleged ineffective assistance of counsel and challenged his sentence.

“Knowing and Intelligent” Waiver of Right to Appeal

In a de novo appellate review, the Fourth Circuit considered whether the defendant’s waiver of his right to appeal his conviction and sentence was “knowing and intelligent.” Under United States v. Thornsbury, the court must evaluate the totality of the circumstances, “including the experience and the conduct of the accused, as well as the accused’s educational background and familiarity with the terms of the plea agreement.” The waiver is generally enforced as long as it is valid.

Standard of Review: Totality of the Circumstances

The Fourth Circuit found that the defendant “knowingly and intelligently waived his right to appeal his sentence in his plea agreement” based on a totality of the circumstances. The defendant’s challenge was within the scope of the valid and enforceable waiver.

Fourth Circuit Affirms Conviction & Sentence

The Fourth Circuit affirmed the district court’s judgment upholding the defendant’s conviction and 138-month sentence, dismissing the defendant’s challenge.

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3Feb

Circumstance-Specific Approach is Appropriate for Use in SORNA “Sex Offense” Analysis

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By Katharine Yale

Today, in the published, criminal opinion U.S. v. Price, the Fourth Circuit held that the circumstance-specific approach is the appropriate approach for analysis of whether an offense qualifies as a sex offense under the Sex Offender Registration and Notification Act (“SORNA”).  The court also reinforced its previous holding in U.S. v. Collins that failure to register as a sex offender under SORNA does not qualify as a sex offense for use with the advisory Sentencing Guidelines.

Defendant’s Prior Conviction and Background of the Case

Antwain Guanterio Price (“Price”) was charged on May 13, 2010 with a single count of criminal sexual conduct with a minor. The indictment alleged that he had committed a sexual battery on a victim who was 12 years old. After plea negotiations, Price was convicted in South Carolina for the common law offense, and lesser charge, of assault and battery of a high and aggravated nature (“ABHAN”).  As a result of this conviction, Price was required to register as a sex offender under SORNA. Upon failure to re-register after moving, Price was charged in May 2012 for knowingly failing to register under SORNA.

Price made a motion to dismiss the indictment on the ground that the ABHAN offense is not a “sex offense” under SORNA. The district court denied his motion.  After the denial, Price pleaded guilty to the failure to register charge and was sentenced to two years in prison, followed by a life term of supervised release.

SORNA’s Registration Requirement and Determination of Whether an Offense Satisfies the Statutory Definition of “Sex Offense”

In order for a defendant to be required to register under SORNA, the individual must be convicted of a sex offense. After conviction, if that person fails to properly register, then that individual has violated the act.   In such a case, courts must first determine whether a defendant’s underlying conviction is for a sex offense as defined by SORNA.

The Supreme Court uses three analytical frameworks in determining the nature of an underlying offense. Those frameworks are the categorical approach, the modified categorical approach, and the circumstance-specific approach.   The first two approaches focus on the elements of the offense, rather than specific facts. The circumstance-specific approach, conversely, focuses on the facts relating to the prior conviction.

The District Court did not Err in Applying the Circumstance-Specific Approach to its Assessment of Whether Price’s ABHAN Offense is a Sex Offense Under SORNA

The denial of Price’s motion to dismiss turned on whether his ABHAN offense was a sex offense as defined by SORNA. Because that question is a matter of law, the Fourth Circuit reviewed, de novo, the appropriateness of the circumstance-specific approach employed by the district court. The applicable sections of SORNA, 42 U.S.C. § 16911(5)(a) and § 16911(7)(I), define a “sex offense” as a criminal offense that involves “[a]ny conduct that by its nature is a sex offense against a minor.”

Using statutory construction principles, the Fourth Circuit determined that Congress intended for the circumstance-specific approach to be applied to an analysis of whether an offense is a sex offense under SORNA.   The Supreme Court in Nijhawan v. Holder determined that when a statute contains “language . . . that refers to specific circumstances” or conduct, Congress intended to allow the circumstance-specific approach that entails a more searching factual inquiry.

Here, the SORNA statute, in some subsections, specifically references the elements of the requisite offense, including one element that must involve “a sexual act or sexual conduct with another.” However, language regarding the elements of the offense do not appear in the subsections that define “sex offense.” The omission of any reference to “elements” suggests that Congress intended the “sex offense” defining subsections to cover a broader range of prior offenses.   The sex offense defining subsection also refers to “conduct” and to how the crime was committed. For that reason, the text of the statute suggests that Congress intended the circumstance-specific approach for use in analyzing whether an offense is a sex offense.

The purpose of the statute further indicates Congress’ intent that the circumstance-specific approach apply. Through SORNA, Congress sought “to protect the public from sex offenders and offenders against children.” The focus on children, coupled with the broad language used in defining “sex offense” for minor victims, illustrates Congress’ intent that the circumstance-specific approach apply.

Last, the Fourth Circuit dismissed Price’s argument that the sixth amendment requires the use of the categorical approach in determining whether an offense is a sex offense under SORNA. The court found that the sixth amendment did not require the categorical approach because had Price gone to trial, a jury would have had to find, beyond a reasonable doubt, that his prior offense was a sex offense. When Price pled guilty, he relinquished not only a fair trial, but also his right to a jury trial. Therefore, the categorical approach is not required in an analysis of 42 U.S.C. § 16911(7)(I).

The District Court Erred in Calculation of Price’s Supervised Release Sentence

Price also argued that the district court erred in its calculation of his advisory sentence guidelines sentence range as applied to his supervised release. A term of supervised release may be up to life, if the offense is a sex offense. Additionally, the “term of supervised release imposed shall not be less than any statutorily required term of supervised release.” In this case, the supervised release required by the applicable statute was a term of five years to life. Thus, the minimum advisory Guidelines term was set by the statute at five years.   Next, the court determined that Price’s offense was a sex offense and calculated the maximum term of the advisory range to be life.   Price made no objections to this range, which was set forth in the presentence report. If he complied with the conditions of release, he could seek to terminate the supervision after five years.

Price argued that failing to register as a sex offender is not a “sex offense” under the advisory Guidelines provision used in his sentencing.   In United States v. Collins, the Fourth Circuit held that effective November 1, 2014, failing to register as a sex offender is not a sex offense for the purposes of the advisory Guidelines. Thus, under a plain error review, the district court did err in considering Price’s offense as a sex offense and Price was not subject to the enhanced Guidelines range.

Further, the court pointed out that a clarifying amendment to the Guidelines established that the Guidelines “range” is actually only a single point in instances when the statutory minimum term of supervised release is greater than the Guidelines minimum. In other words, the advisory term of supervised release is really a single point fixed at the statutory minimum. Therefore, Price’s Guidelines range of supervised release should only have been five years.

The Fourth Circuit Affirmed Price’s Conviction for Failing to Register Under SORNA, Vacated Price’s Supervised Release Sentence, and Remanded For Resentencing on the Supervised Release Question

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2Feb

Fourth Circuit Addresses Elements Under Immigration Marriage Fraud Statute

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By Elissa Hachmeister

On Monday, February 2, in the criminal case of United States v. Fatih Sonmez, a published opinion, the Fourth Circuit held that the District Court for the District of Maryland did not abuse its discretion when it rejected the defendant’s proposed jury instructions in favor of a charge tracking the actual statutory language.

Immigration Marriage Fraud Conviction and Proposed Jury Instructions

A jury convicted Sonmez of marriage fraud in violation of 8 U.S.C. § 1325(c), which applies when an individual “knowingly enters into a marriage for the purpose of evading any provision of the immigration laws.”

On appeal, Sonmez contended that the district court erred when it rejected his proposed jury instructions on the elements of the offense under Section 1325(c). Specifically, Sonmez’s proposed instructions required the government to prove that “the only reason the marriage was entered into was to obtain an immigration benefit” and that “the defendant and his US citizen spouse had no intent to establish a life together.” Instead, the trial court instructed the jury that the government must prove “that the marriage was entered into for the purpose of evading a provision of the United States immigration laws.”

Denial of Proposed Jury Instructions Reviewed for Abuse of Discretion

A district court’s denial of proposed jury instructions is reviewed for abuse of discretion; to establish abuse of discretion in this context, a defendant must show that the proposed instructions (1) were “correct,” (2) were “not substantially covered by the charge that the district court actually gave to the jury,” and (3) “involved some point so important that the failure to give the instruction[s] seriously impaired the defendant’s defense.” United States v. Bartko, 728 F.3d 327, 343 (4th Cir. 2013).

Proposed Jury Instructions Were Incorrect Statements of Law

Explaining that it must interpret statutory language as written, see Ignacio v. United States, 674 F.3d 252, 255 (4th Cir. 2012), the Fourth Circuit reasoned that the instructions sought by Sonmez were not supported by the plain language of Section 1325(c), but instead would have changed the elements of the crime.

The Fourth Circuit cited approvingly to the Sixth Circuit’s decision in United States v. Chowdhury, where a similar instruction to the one ultimately given by the trial court, requiring the government to prove that the defendant “entered into the marriage for the purpose of evading the United States immigration laws,” was held proper because it tracked the language of statute. 169 F.3d 402, 406-07 (6th Cir. 1999). Indeed, the majority of circuits that have considered the language of Section 1325(c) have set forth elements consistent with the district court’s instructions to the jury in this case. See United States v. Yang, 603 F.3d 1024, 1026 (8th Cir. 2010); United States v. Darif, 446 F.3d 701, 709-10 (7th Cir. 2006); United States v. Islam, 418 F.3d 1125, 1129-30 (10th Cir. 2005); United States v. Rojas, 718 F.3d 1317, 1320 (11th Cir. 2013).

The Fourth Circuit characterized the Ninth Circuit’s contrary decisions, see, e.g., United States v. Orellana-Blanco, 294 F.3d 1143, 1151 (9th Cir. 2002) (requiring as an element of the offense that the government prove that the defendant had no intent to establish a life with his spouse at the time of the marriage), as unpersuasive and imposing “a requirement completely apart from the statutory language.”

Court of Appeals for the Fourth Circuit Affirmed the District Court’s Judgment

The Fourth Circuit affirmed, holding that the district court did not abuse its discretion in declining to give the proposed jury instructions because they were not correct statements of the law.

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29Jan

Fourth Circuit Holds Guilty Plea Was Supported by an Adequate Factual Basis

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By Diana C. Castro

Today, in the criminal case United States v. Adonte Young, the Fourth Circuit affirmed in an unpublished opinion the decision of the District Court for the Western District of North Carolina, holding Young’s guilty plea was supported by an adequate factual basis.

 Defendant Questions Whether His Guilty Plea Was Adequately Supported

Under Anders v. California, the defendant does not argue that there are meritorious issues for appeal; however, he questions whether his guilty plea was supported by an adequate factual basis.  386 U.S. 738 (1967).

Defendant Pled Guilty to Aiding and Abetting of a § 924(c) Violation

To establish the aiding and abetting of a § 924(c) violation, the Government must prove “that the defendant actively participated in the underlying… violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.”  Rosemund v. United States, 134 S. Ct. 1240, 1243 (2014).

Here, Young and a codefendant robbed a bank teller at gunpoint and fired two rounds as they left the bank. Even though Young denied firing the shots, he admitted he gave the codefendant the gun.  Moreover, the police found Young’s DNA on the firearm when the gun was recovered after the robbery.

A Plea Court Must Conduct a Colloquy Prior to Accepting a Guilty Plea

Under Federal Rule of Criminal Procedure 11(b)(1), before accepting a guilty plea, the plea court must inform the defendant of, and determine he understands, the nature of the charge to which he is pleading guilty, any mandatory minimum sentence, the maximum possible penalty applicable, and the various rights the defendant surrenders by pleading guilty.  United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).

Additionally, the district court must also confirm that the defendant’s plea is voluntary, supported by an independent factual basis, and not a result of coercion in the plea agreements.

The Magistrate Judge Conducted a Thorough Plea Colloquy

Because Young did not move to withdraw his guilty plea or otherwise preserve any allegation of Rule 11 error, the Fourth Circuit determined it would review for plain error.  Accordingly, the Fourth Circuit held the magistrate satisfied the requirements of Rule 11 and ensured that Young’s plea was knowingly and voluntary.

A Court Has Wide Discretion in Determining Factual Basis of a Guilty Plea and May Rely on Anything in the Record

Under United States v. Ketchum, a court need only be “subjectively satisfied” that the factual basis is sufficient to establish each element of the offense.  550 F.3d 363, 366-67 (4th Cir. 2008).  “The district court must assure itself simply that the conduct to which the defendant admits is in fact an offense under the statutory provision under which he is pleading guilty.”  United States v. Carr, 271 F.3d 172, 178-79 n.6 (4th Cir. 2001).

Court of Appeals for the Fourth Circuit Court Affirmed

Reviewing the facts of the case, the Fourth Circuit held the District Court did not err in finding a factual basis for the offense.

Applying Anders, the Court found no potentially meritorious issues and affirmed the District Court’s judgment.  Furthermore, the Court required that counsel inform Young, in writing, of his right to petition the Supreme Court of the United States for further review.

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28Jan

Release Revocation Based on Evidence

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By Andrew Kilpinen

On Wednesday, January 28, 2015, in an unpublished opinion without oral arguments, the 4th Circuit, in U.S. v. Trala, affirmed the findings of the Eastern District of North Carolina that John Walter Trala (“Trala”) violated the terms of his supervised release.

Trala’s Release Was Revoked For Possessing a Stolen Firearm as a Felon

The district court found by a preponderance of the evidence offered at Trala’s hearing that he violated the conditions of his release because he had (1) received stolen goods or property, and (2) possessed a firearm as a felon. The district court revoked Trala’s release and imposed a twenty-four month sentence.

District Court Based its Findings on Evidence in Addition to Trala’s Credibility as a Witness

Trala argued in his brief that the district court based its decision on a finding that his testimony at the revocation hearing was not credible. In reviewing for clear error, the 4th Circuit found that the district court based its findings on the evidence as well as Trala’s credibility; stating that the evidence was sufficient to find that Trala “possessed stolen ammunition and fired and attempted to sell a stolen [firearm].”

4th Circuit Affirmed District Court

The 4th Circuit affirmed the district court’s finding and sentence.

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23Jan

Fourth Circuit Affirms Sentencing Despite District Court’s Reference to Rehabilitation

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By Kaitlin Price

Today, in the criminal case of United States v. Lemon, a published opinion, the Fourth Circuit held that the district court did not plainly err when it discussed Lemon’s rehabilitative needs during its sentencing procedure. The Court affirmed the district court’s twenty-four month prison sentence for Lemon’s violations of her supervised release.

District Court’s Sentencing Proceeding

In 2008, Cynthia Lemon plead guilty to conspiracy to defraud the United States by making, uttering and possessing forged securities and was sentenced to thirty months in prison and three years of supervised release.  In February 2013, Lemon began her supervised release term and five months later was arrested for multiple violations of her supervision, including several forged checks.

The Supervised Release Violation Report recommended twenty to twenty-four months imprisonment based upon the nature of the violations and the sentencing guidelines. Lemon’s parole officer recommended a twenty-four month imprisonment sentence. At the revocation hearing, the district court adopted the Government’s recommendation of a sentence within the Guidelines range and sentenced Lemon to twenty-four months in prison. In addition to discussing the reasons for the issued sentence the district court also commented on Lemon’s mental health.

Lemon appealed alleging that the district court erred in considering her rehabilitative needs in determining the length of her sentence.

Standard of Review

Lemon did not raise this issue at the revocation hearing; therefore, the Fourth Circuit reviewed the sentencing for plain error. To prevail Lemon needed to establish “an error (1) was made, (2) is plain (i.e. clear or obvious), and (3) affects substantial rights.” United States v. Lynn. Even if Lemon established the required elements, the Court may exercise its discretion to correct the error based upon whether the error seriously affects the fairness of the proceeding.

Tapia v. United States and the Impermissible Use of Rehabilitative Needs in Criminal Sentencing

On appeal Lemon claimed that the district court violated the Tapia rule. In Tapia v. United States the Supreme Court held that the Sentencing Reform Act prohibits federal courts from imposing prison terms “to promote a criminal defendant’s rehabilitation.” The Supreme Court explained that “[a] court commits no error by discussing the opportunities for rehabilitation within prison” but a court cannot “impose or lengthen a prison sentence to enable an offender to compete a treatment program.” The district court in Tapia v. United States stated that “the sentence has to be sufficient to provide needed correctional treatment,” which is an impermissible consideration on the part of the district court.

In applying the Tapia v. United States holding, the Fourth Circuit has determined that courts are permitted to consider rehabilitation so long as the court is not imposing or lengthening a sentence to further rehabilitation. The Fourth Circuit has also held that the Tapia rule applies to revocation sentences.

In United States v. Alston the Fourth Circuit held that the district court’s comment that the defendant’s sentence would “provide the needed treatment of care in the most effective manner possible,” did not violate the Tapia rule because the comments only suggested the court was aware of the rehabilitative benefits of the sentence, not that the court chose the sentence based upon those benefits. On the other hand, in United States v. Bennett the Fourth Circuit held the district court did violate Tapia when it stated that the defendant “needs intensive substance abuse treatment. So, the court will impose a sentence that provides ample time for that.”

Based upon the Supreme Court’s holding in Tapia v. United States, the Fourth Circuit’s precedent, and the precedent in sister Circuits, the Fourth Circuit found that “it is unlikely that a court has committed Tapia error unless it has considered rehabilitation for the specific purpose of imposing or lengthening a prison sentence.”

The District Court’s Sentencing of Lemon Did Not Commit a Tapia Error

The Fourth Circuit held that the district court did not err when it discussed Lemon’s mental state during the sentencing proceeding. First, the district court never made any indication that its concern for Lemon’s mental health was a factor in determining the length of her sentence. Further, the court specifically stated it did not even know if she would receive mental health treatment, suggesting it did not impose Lemon’s sentencing based upon rehabilitation.

Finally, the district court provided an independent rationale for Lemon’s sentencing that had nothing to do with the possibility of Lemon receiving treatment. The district court specifically stated that because Lemon had continued to re-offend there was a “need to protect the public from further crimes.”

Practical Advice to Avoid Confusion Regarding a Tapia Error

The Fourth Circuit advised that to eliminate any question as to whether a Tapia error occurred, district courts should separate any discussion regarding rehabilitative needs from its discussion of the factors that influenced the sentencing.

District Court Sentencing Affirmed

The Fourth Circuit affirmed the district court’s twenty-four month sentence because the court did not wrongfully consider rehabilitation in its sentencing decision.

 

 

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22Jan

Fourth Circuit Upholds “Aggravated Felony” Arson Conviction for Lawful Permanent Resident

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By Michael Mitchell

Defendant Challenges Classification of Arson Conviction as “Aggravated Felony” to Avoid Deportation

Today, in Sandra Espinal-Andrades v. Eric Holder, Jr., the Fourth Circuit considered whether the Defendant’s arson conviction qualifies as an aggravated felony under the Immigration and Nationality Act (“INA”). The court reviewed this Board of Immigration Appeals (“BIA”) case de novo.

BIA Found Defendant’s Arson Conviction Qualified for “Aggravated Felony” Classification Sufficient for Removal

Espinal became a lawful permanent resident after she immigrated to the United States from El Salvador in 1999. She plead guilty to one count of first degree arson in exchange for the state dropping her three additional related charges. She was sentenced to 360 days in prison. The Department of Homeland Security believed that the Defendant’s first degree arson conviction qualified as an aggravated felony, a classification that an immigration judge confirmed and ordered for her removal. Her appeal of this aggravated felony classification to the BIA was dismissed based on agency precedent.

Fourth Circuit Finds Congress Intended Aggravated Felony Classification to Cover State Arson Offenses

Relying on Chevron deference, criminal state statutes may qualify as an aggravated felony under the INA in spite of lacking a federal jurisdictional element based on BIA precedent if the agency’s interpretation of the state statute is a “permissible construction.”

Chevron Deference For BIA’s Controlling Precedent Even Though State Crime Lacked Federal Jurisdictional Element

In a published opinion by Circuit Judge Wynn, the Court considered whether the agency’s decision should be afforded deference under Chevron v. NRDC. The first step of Chevron is whether the statute is silent or ambiguous regarding the question presented. If so, the court next determines whether the agency’s interpretation “is based on a permissible construction of the statute.” Typically, BIA’s single-member decisions do not receive Chevron deference “because they lack precedential value.” However, this particular decision relies on precedential en banc and three-member panel decisions, such that this controlling precedent can be given Chevron deference.

Under the INA, aliens convicted of an “aggravated felony at any time after admission is deportable.” While the Maryland statute under which Espinal was charged is nearly identical to the INA, it lacks the federal jurisdictional element that the destroyed property be “used in interstate or foreign commerce.” Nevertheless, the INA states that aggravated felony includes violations of both federal and state law.

Applying Chevron analysis, the court first considered whether “Congress has directly spoken to the precise question at issue” by examining the statute’s plain language meaning. This involved defining the terms “described in” and “defined in,” which the court concluded evidenced Congress’s intent to include state statutes as aggravated felonies even if they did not address a federal jurisdictional element. Thus, the statute was not ambiguous. Furthermore, under the second step of Chevron, the court considered whether the BIA’s interpretation was reasonable applying an “arbitrary and capricious” standard. Because the single-member BIA panel relied on precedential agency decisions, the Fourth Circuit found that the BIA’s interpretation was reasonable to find that Espinal’s arson conviction qualified as an aggravated felony.

BIA’s Classification of “Aggravated Felony” for Arson Conviction Upheld by Fourth Circuit Based on Chevron Deference

The Fourth Circuit denied the Defendant’s petition for review of the BIA’s classification of her arson conviction as an “aggravated felony” under the INA. As a lawful permanent resident convicted of an aggravated felony, Espinal may be deported back to El Salvador.

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20Jan

Fourth Circuit Considers Defendant’s Appellate Waiver in Plea Agreement

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By: Katharine Yale

Today in an unpublished per curiam decision, United States v. Talley, the Fourth Circuit considered the validity of an appellate waiver within Talley’s plea agreement. Talley pled guilty to conspiracy to commit Hobbs Act robberies along with two other related charges. He was sentenced to 171 months in prison, a sentence that is at the top of the advisory sentencing guidelines range. Pursuant to Anders v. California, Talley submitted a brief questioning whether his sentence was substantively reasonable, even though there were no other meritorious grounds for appeal. In a supplemental pro se brief, Talley also asked the Fourth Circuit to review the record to determine whether the district court discriminated against him at the sentencing hearing on the basis of race. Talley’s plea agreement contained an appellate waiver, so the Fourth Circuit had to first determine whether that waiver was valid and enforceable.

When is an Appellate Waiver Contained in a Plea Agreement Deemed to be Valid?

The validity of an appellate waiver is reviewed de novo. In order to withstand review, the defendant must agree to the waiver knowingly and intelligently. To determine whether the defendant’s agreement was knowing and intelligent, the reviewing court must look at the totality of the circumstances. Such review includes an examination of the defendant’s educational background, familiarity with the terms of the plea agreement, and the experience and conduct of the defendant. If the district court fully questions the defendant about the waiver of his right to appeal during the plea colloquy, then the waiver is generally held to be both valid and enforceable.

Is Defendant’s Appellate Waiver Valid?

Here, the Fourth Circuit found that the waiver contained in Talley’s plea agreement was both valid and enforceable.

Should the Fourth Circuit Enforce Talley’s Waiver?

The Fourth Circuit will enforce a valid waiver as long as the issue being appealed is within the scope of the waiver. Here, Talley reserved only the right to appeal from a sentence in excess of the advisory sentencing guidelines range determined at sentencing. He waived all other rights to appeal his conviction and sentence. Therefore, the Fourth Circuit held that Talley’s challenge to the substantive reasonableness of his sentence was within the scope of the waiver because the sentence was within the sentencing guidelines.

Did the District Court Discriminate Against Talley at the Sentencing Hearing?

Despite the waiver, the Fourth Circuit was not precluded from determining whether the district court discriminated against Talley based on his race at the sentencing hearing. However, after a review of the sentencing transcript, the Fourth Circuit found no evidence to substantiate the allegation.

The Fourth Circuit Affirms in Part, Dismisses in Part, and Remands.

To the extent that Talley’s claims on appeal were within the scope of the appellate waiver, the Fourth Circuit granted the Government’s motion to dismiss the appeal. Otherwise, the judgment of the district court was affirmed, but the case was remanded to the district court to correct the amount of judgment.

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