Wake Forest Law Review
14Nov

Qualified Immunity for Detention Officers Conducting Strip Searches

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By: Lauren Durr Emery

Are Corrections Officers Entitled to Qualified Immunity from Suits Involving Strip Searches of Arrestees not Charged in Crimes Involving Weapons, Drugs, or Felony Violence?

In Dana West v. Susan Murphy, the Fourth Circuit heard a challenge regarding the constitutionality of strip searches of arrestees at Baltimore Central Intake and Booking Center.

Arrestees Subjected to Strip Search at Baltimore Central Intake and Booking Center

The named plaintiffs in this case represent a certified class of individuals who were arrested between May 12, 2002 and April 30, 2008 “(a) on charges [or in cases] not involving weapons, drugs, or felony violence, and (b) strip searched (c) prior to or without presentment before a court commissioner or other judicial officer.”  Following the strip searches, the arrestees remained in holding rooms while they waited to see a court commissioner.  Under Maryland law, the detainees must appear before a court commissioner within twenty-four hours of arrest.

The holding rooms at Central Intake may contain up to twenty-five arrestees at a time.  However, over the course of their stay, arrestees may encounter many more people due to the coming and going of individuals into the holding room.  The named plaintiffs encountered 55, 36, 35, and 20 people respectively who had been arrested for a wide variety of crimes.

Determining Whether an Officer Receives Qualified Immunity is a Two-Pronged Inquiry

To overcome a correction officer’s right to qualified immunity, a plaintiff must demonstrate: (1) That the facts make out a violation of a constitutional right; and (2) that the the right at issue was clearly established at the time of the defendant’s alleged misconduct.

No Clearly Established Law Regarding Strip Searches of Detainees Held Outside the General Population During the Time in Question.

The Court stressed that the temporal requirement for qualified immunity is important because it is closely related to the issue of notice.  Thus, the Supreme Court decision (Florence v. Board of Chosen Freeholders of County of Burlington) cited by the defendants and decided almost four years after the class of plaintiffs closed, does not demonstrate whether or not the law on jail strip searches was clearly established at the time the alleged searches were conducted.

The Court also distinguished three cases (finding strip searches unconstitutional) cited by the plaintiffs.  The Court stated that the searches in question “were unconstitutional because there were no security reasons strong enough to justify the intrusive and public nature of the searches.”  In contrast, the Court found the searches conducted at Central Booking, to have been conducted in a more private setting and to have been justified by heightened security concerns.

The Court ultimately concluded that the state of the law at the time of the alleged search was undeveloped and thus it would be impermissible to “tax correctional officers with clairvoyance.”

Correctional Officers Entitled to Qualified Immunity 

Without needing to reach the constitutionality of the alleged searches, the Court found that the officers were entitled to qualified immunity.

Though in agreement with the holding, Judge Wynn wrote a separate concurrence to stress the importance of addressing the legality of strip searching detainees held outside the general population.  Since the Court did not reach the merits of plaintiffs’ constitutional claim, Wynn suggests that correctional officers are left adrift without guidance regarding the constitutionality of such searches.

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13Nov

Enhanced Child Pornography Sentence Survives Constitutional Challenge

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By Michael Mitchell

Does Increased Sentencing for Crime Against “Vulnerable Victims” Violate the Eighth Amendment’s Prohibition of Cruel and Unusual Punishment?

Today, in United States v. Dowell, the Fourth Circuit considered whether the district court’s increased sentence for the Defendant under the “vulnerable victim” standard was appropriate when an upward adjustment was already made based on his victim’s young age.

Child Pornography Conviction Results in “Upward Adjustment” Sentencing

Defendant John Dowell pled guilty to twelve counts of production of child pornography and one count of transportation of child pornography after he recorded himself in various stages of sexual contact with two girls under five.  Dowell stored more than 70,000 pornographic images and videos on his computer, three-fourths of which involved children, and posted many of them to the Internet through various websites.

After a lengthy sentencing hearing, the district court sentenced Dowell to 960 months in prison.  The court heard expert testimony from a psychologist, who testified that Dowell was a pedophile, “sexually attracted to females, nonexclusive type” (adults and children).  Although the psychologist testified that Dowell is unlikely to be a repeat offender, he acknowledged that pedophilia is a chronic condition “that is unlikely to go away as [he] ages.

Based on Dowell’s Pre-Sentence Report, the district court allowed enhanced sentencing for “engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor” and “engag[ing] in a pattern of activity involving prohibited sexual conduct.”  The court relied on “the well established principle that double counting is authorized” unless specifically prohibited in applying the harsher sentencing.  Dowell has challenged the district court’s use of this “vulnerable victim” enhancement.

Eighth Amendment Challenge over Proportionality of Sentencing

 The court considered the constitutionality of the Defendant’s enhanced sentencing in light of the Eighth Amendment’s prohibition of cruel and unusual punishment.  Specifically, the court reviewed whether the sentencing was proportional under the Eighth Amendment.  Defendants bringing a constitutional claim must assert either an “applied-as” challenge, arguing that the sentence is disproportionate for the particular case, or a “categorical” challenge, asserting that “an entire class of sentences is disproportionate.”  Dowell has only raised an applied-as challenge to his sentence.

Defendant Fails to Substantiate As-Applied Constitutional Challenge

In a published opinion under de novo review, the Fourth Circuit relied on the “narrow proportionality principle,” adopted by the Supreme Court for as-applied challenges to the Eighth Amendment.   Strict proportionality is not required between the crime and the sentence.  Only “grossly disproportionate” sentences are forbidden by the Eighth Amendment, which is evaluated using a two-part test.  First, the court must determine “that a ‘threshold comparison’ of the gravity of the offense and the severity of the sentence “leads to an inference of gross proportionality.”  If this high burden is met, the court will then compare the challenger’s sentence with other offenses in that jurisdiction and sentences of similar offenses in other jurisdictions to establish that it constitutes cruel and unusual punishment.

Recently, the Fourth Circuit rejected a similar Eighth Amendment challenge of a lengthy sentence stemming from a child pornography conviction.  In United States v. Cobler, 748 F.3d 570, the court found that the defendant’s crime was “sufficiently egregious” to justify heightened sentencing based on the large quantity of child pornography and the risk that he posed to his victim.  Here, the court draws parallels to this 2008 case and rejects Dowell’s claims that the crime was nonviolent.  As a result, the court found that the Defendant’s sentence was not cruel and unusual punishment under the Eighth Amendment.

Fourth Circuit Affirms Harsher Sentencing In Spite of Harmless Error

The Fourth Circuit affirmed the Defendant’s 960-month sentence, finding that his sentence was proportional under the Eighth Amendment’s prohibition of cruel and unusual punishment and rejecting his claim that “double counting” is not permitted by the Sentencing Guidelines as a harmless error.

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11Nov

Fourth Circuit Affirms Sentence Under Two-Step Standard of Review

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By: Katharine Yale

Yesterday in United States v. Naumann, the Fourth Circuit affirmed the sentence of a defendant who pled guilty to failure to register under the Sex Offender Registration and Notification Act. The district court sentenced him to a thirty-five month sentence, a sentence within the Guidelines, and also to an above-Guidelines term of supervised release for fifteen years. The defendant appealed, claiming that the sentence was procedurally and substantively unreasonable.

The Standard of Review for Review of a Sentencing Judgment is a Two-Step Inquiry.

The court reiterated the two-step process for use in reviewing a district court’s sentence. First, the court must determine whether the district court committed a significant procedural error. Such an error could include failing to calculate the Guidelines range, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the sentence.

Next, if there is no significant procedural error, the court must determine whether the sentence is substantively reasonable. Here, under an abuse of discretion standard, the court must consider the totality of the circumstances, including any variance from the Guidelines range.

The district court is given deference and the fact that the Fourth Circuit would have imposed a different sentence is not enough to justify a reversal.

The Sentence and Above-Guidelines Term of Supervised Release Was Not Imposed in Error.

The defendant argued that the district court did not consider the § 3553(a) factors in its decision. However, the record showed that the district court did address the factors and as such, the court found that the sentence was not imposed in error.

Next, the defendant argued that the above-Guidelines term of supervision was imposed in error. First, on procedural grounds, he argued that the factual findings relied on by the district court were erroneous and that the district court did not adequately explain the conditions of supervision.

As to the erroneous facts, the court rejected the defendant’s argument because any error in considering a Facebook post was harmless, and the fact that the court misspoke about a previous failure to register was actually the court alluding to part of the conduct underlying the offense. The court found that the sentencing transcript did adequately explain the reasoning for the condition of supervision. Thus, there was no procedural error.

The court also rejected the defendant’s claim that the length of supervision imposed by the district court was substantively unreasonable. While the court did rely on precedent in its decision, it properly conducted an individualized assessment of defendant’s case before deciding on the sentencing variance.   Next, the court found that the district court did not improperly consider the need for punishment in imposing a sentencing variance because it was only mentioned with respect to the consideration of deterrence and the protection of the public.

Finally, the defendant’s last argument was that the requirements of the supervised release themselves were substantively unreasonable. The court rejected this argument under a plain error standard (the defendant did not object to the requirements at sentencing) because defendant’s sex offense was less than five years old, and the district court decided to monitor defendant’s behavior through polygraph testing and mental health treatment to determine whether sex offender treatment is necessary.  Instead of requiring sex offender treatment, the district court took the more measured approach and therefore, there was no plain error.

District Court Judgment Affirmed.

The Fourth Circuit held that the sentence imposed by the district court was procedurally and substantively reasonable. Thus, the sentence imposed by the district court was affirmed.

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11Nov

Fourth Circuit Affirms Carjacking Conviction

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By: Kelsey Kolb

Today, in United States v. Davis, the Fourth Circuit affirmed by unpublished per curiam opinion the District Court for the Middle District of North Carolina’s admission of portions of one witness’ testimony and its entering of the jury’s guilty verdict.

Davis was convicted of carjacking and of carrying and using by brandishing a firearm during and in relation to a crime of violence,in violation of 18 U.S.C. §§ 2119(1), 2 (2012) and 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 (2012), respectively. Davis appealed first, on the grounds that there was insufficient evidence for the former conviction, carjacking. Second, Davis contended that the lower court erred in admitting portions of one witness’ testimony.

There was Sufficient Evidence from which the Jury Could Convict Davis for Carjacking.

The Fourth Circuit, in reviewing the challenge to the sufficiency of the evidence de novo, found that there was sufficient evidence presented to the jury by which it could find that Davis had (1) with intent to cause death or serious bodily harm (2) taken a motor vehicle (3) that had been transported, shipped, or received in interstate commerce (4) from the person or presence of another (5) by force and violence or intimidation.

In viewing the evidence and reasonable inferences in the light most favorable to the government, as is required for reviews of convictions, the court found substantial evidence in the record to support a conclusion of Davis’ guilt beyond a reasonable doubt. The testimony of four witnesses that the jury deemed credible was “ample evidence.” The victim of the carjacking, Woods, testified that he and witness Neese were in a home when Davis and a co-defendant entered. Woods stated that the co-defendant held a pistol, demanded Woods’ car keys, and hit Woods in the head with the pistol when he did not comply. This caused Woods to surrender his car keys. Davis then reached into Woods’ pocket and took his wallet. Davis and the co-defendant exited the home and left in Woods’ car. Woods testified that Davis willingly participated in the offense. The second piece of testimony came from witness Neese. Although unable to identify Davis, Neese corroborated Woods’ testimony. Third, Davis’ cellblock mate further corroborated Woods’ testimony of the events and testified that Davis admitted to him his plan to steal Woods’ car, which included the use of his co-defendants pistol. Finally, Honda employee Brynes testified that the car was made in Ohio.

Regardless of the theories that Davis advanced in trial, the jury was free to take the evidence presented before it, weigh the credibility of each, and return a verdict based on the interpretation it believed. Davis’ argument that he merely borrowed Woods’ car was outweighed by contradictory evidence. His argument that he planned on returning the car was immaterial, given that “intent to permanently deprive” was not an element of carjacking. Finally, his argument that he was coerced by his co-defendant was outweighed by circumstantial evidence that suggested otherwise. Thus, Davis did not meet his burden of proving that the testimonial evidence presented against him was insufficient to support a conclusion of his guilt in the carjacking offense beyond a reasonable doubt.

The court further found that Davis’ argument as to the failure of the prosecution to prove the fourth element, “from the person or presence of another,” was untenable. Even though Woods was not “in or immediately next to his vehicle” when it was taken, the court reasoned that is well established that “presence” does not require this narrow reading. As quoted in United States v. Soler, presence is found when the vehicle is within the victim’s “reach, inspection, observation, or control, “such that he could, “if not overcome by violence or prevented by fear, retain possession of it.” The court found that “presence” was more than satisfied in this case.

Therefore, the Fourth Circuit held that the jury was provided with sufficient evidence from which it could find each element of the carjacking offense to be satisfied, implicating Davis beyond a reasonable doubt.

The District Court did not Err in Admitting Two Portions of Testimony.

Davis’ first preserved challenge, on the grounds of F.R.E. 404b and 403, was to testimony that he planned to bribe Woods with drugs if Woods would drop the charges. The court found that the lower court did not abuse its discretion in admitting this evidence under 404b because the testimony of his plan to intimidate or influence Woods, a witness for the government, was not being offered to prove the defendant’s bad character, but rather to prove his consciousness of guilt and that he knew his case was weak. The testimony was also offered to contradict one of Davis’ theories, that he merely borrowed Woods’ car. This testimony met 404b’s requirement of reliability because it was given by his cellblock mate, an acquaintance for several years, and included specific details of the offense. The testimony also met 403’s requirement that the probative value of the evidence not be outweighed by unfair prejudice. The court held that the extreme probative value of this evidence was not outweighed by its “undoubtedly,” yet not unfairly, prejudicial nature.

Davis’ second preserved challenge, on the grounds of F.R.E. 403, was to testimony that he planned to gain juror sympathy during the trail by crying on the witness stand. The court found that the lower court did not abuse its discretion in admitting this evidence as relevant under 403 because this plan tended to make a fact—his consciousness or guilt—more probable than it would have been without the evidence. Davis, for the first time on appeal, contended that this evidence was also inadmissible on the grounds of 404b. Because Davis failed to preserve this ground for objection, the court reviewed the lower court’s admission for plain error and found none, given the weight of the additional evidence admitted at trial.

Because There was Sufficient Evidence from which the Jury Could Find Davis’ Guilt of Carjacking Beyond a Reasonable Doubt and Because Neither Piece of Challenged Testimony was Inadmissible Under Either 404b or 403, the Fourth Circuit Affirmed Davis’ Conviction.

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10Nov

Specific Intent Jury Instruction Precludes Need for Good Faith Jury Instruction

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By Marcus Fields

Is a Good Faith Jury Instruction Required if a Court has Already Given an Adequate Specific Intent Instruction?

Today in United States v. McCants, the Fourth Circuit made clear that it is within the discretion of a district court to refuse to give a good faith jury instruction as long as it has given an adequate specific intent instruction. Because the district court did not abuse its discretion, the Fourth Circuit affirmed McCants’ conviction of passing fictitious financial obligations.

Standard of Review for Jury Instructions

When reviewing jury instructions for potential error, the Fourth Circuit focuses on the adequacy of instruction “regarding the elements of the offense and the defendant’s defenses.” It will review the instructions “in their entirety” keeping the trial as a whole in mind. The Fourth Circuit will review de novo whether the court below “has properly instructed a jury on the statutory elements of an offense.” All other jury instruction decisions will be reviewed under an abuse of discretion standard.

When is a Court’s Refusal to Give a Jury Instruction a Reversible Error?

The Fourth Circuit reiterated that the refusal to give a jury instruction is reversible as an abuse of discretion when the proposed instruction meets three factors: (1) The instruction “was correct; (2) was not substantially covered by the court’s charge to the jury; and (3) dealt with some point in the trial so important, that failure to give the requested instruction seriously impaired the defendant’s ability to conduct his defense.”

Refusal to Give a Good Faith Jury Instruction was not an Abuse of Discretion.

 The Fourth Circuit concluded “that the district court provided an adequate specific intent instruction to the jury.” Presumably because the good faith instruction was “substantially covered” by the specific intent instruction, the Fourth Circuit held that the district court was “not required to give an additional instruction on good faith.”

 District Court Judgment Affirmed

 The Fourth Circuit affirmed the judgment of the district court. It dispensed with oral arguments determining that they would not help the decisional process.

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10Nov

Search and Stop Are Proper with a Reasonable Suspicion

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by David Darr

On Friday, in United States v. Walker, an unpublished per curium opinion, the Fourth Circuit affirmed the decision of the District of Maryland to deny the defendant’s motion to suppress evidence. The court held that police had a reasonable suspicion to both arrest and search the defendant.

Was Arrest and Search Proper?

The issue in this case was whether the police had a reasonable suspicion to arrest the defendant and a reasonable fear for the officer’s own and others’ safety to search the defendant.

Walker’s Arrest and Search

Early in the morning on January 30, 2011, the police received a call from a 911 dispatcher that a man with a gun was at a Denny’s in Baltimore. An officer who was already in the area responded to the call and upon exiting his vehicle he encountered two men pointing to the defendant, Stephan Sylvester Walker, Jr., and telling the officer that Walker is “the guy with the gun.” The officer ordered Walker to get down on the ground and drew his service weapon, but Walker attempted to hide behind a car. As other officers arrived on the scene, Walker acquiesced and the police found a .45 caliber pistol in Walker’s waistband.

At trial, Walker moved to suppress, arguing that both his arrest and seizure of property were improper. The district court denied this motion, finding both the initial stop and taking of the gun were legal. Subsequently, a jury found Walker guilty of possessing a firearm and ammunition after having been convicted of a felony and he was sentenced to 293 months in prison. Walker appealed the denial of his motion to suppress because he claimed the officers lacked a reasonable suspicion.

Legal Requirements for Arrest and Search

When a motion to suppress is denied, the appellate court views the evidence in the light most favorable to the Government. The Fourth Amendment allows a police officer to stop a person when the officer has a reasonable suspicion based on the facts that criminal activity may be afoot. A reasonable suspicion depends on the totality of the circumstances, including any reasonable inferences. Additionally, an officer may also search a suspect’s person if the officer has a reasonable fear for his own or others’ safety based on a suspicion that the suspect may be armed and dangerous.

The Officer Had a Reasonable Suspicion

The Fourth Circuit, viewing the evidence in the light most favorable to the Government, found that the officer had more than enough evidence to arrest and search Walker. The circumstances surrounding the stop of Walker would create a reasonable suspicion that Walker had a gun. While an anonymous tip alone might not be enough for an officer to stop someone, the 911 call, the witnesses claiming Walker had a gun, and Walker’s evasive behavior all show there was a reasonable suspicion for the stop. Additionally, the totality of the circumstances also show that Walker was armed and potentially dangerous, creating a reasonable fear in the officers to justify the search of Walker’s person.

Fourth Circuit Affirms Decision

For the reasons stated above, the Fourth Circuit affirmed the decision of the District of Maryland.

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4Nov

No Misconduct in Drug Sentencing

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By: Caroline Daniel

The Fourth Circuit affirmed Defendant Rocci Wade’s convictions for conspiracy to possess with the intent to distribute oxycodone and distribution of oxycodone in United States v. Wade, an unpublished opinion released today.

Wade Alleged Prosecutorial Misconduct and a Violation of Due Process

In his appeal, Wade alleged two counts of prosecutorial misconduct based on statements made in the government’s closing statement: (1) that the case against Wade had “basically everything an investigation would have . . . except a confession,” and (2) that Wade’s co-defendants were asked to testify against Wade “fully and truthfully” and in exchange the government recommended a “one-level downward departure at sentencing.”  The Fourth Circuit reviewed the first claim of prosecutorial misconduct for abuse of discretion and the second claim for plain error.

Wade also appealed the admission of a witness’s testimony against him, claiming the suppression of evidence and a violation of Due Process.  Before the trial, the government stated that the witness would testify that he had been purchasing illegal drugs from Wade for about two years.  During the actual trial, however, the witness testified that he had been receiving drugs from Wade since 2007 or 2008.  The court reviewed Wade’s Due Process claim for reversible error.

Prosecutor Did Not Engage in Any Misconduct

To find that misconduct occurred, the Court must find: (1) that the prosecutor’s remarks and/or conduct were improper and (2) that the conduct prejudiced the defendant from receiving a fair trial.  Regarding the first statement (that the only thing the case lacked was a confession), the Fourth Circuit considered whether the government intended for the statement to be a comment on Wade’s decision to abstain from testifying.  The Court held that the prosecutor’s remark was not intended to reflect on Wade’s decision not to testify, and that it posed little risk that the jury would perceive it in that way.

In terms of the second statement concerning the co-defendants’ sentences, the Fourth Circuit held that no reversible error existed, as the prosecutor truthfully and accurately described the sentencing agreements made with Wade’s co-defendants.

No Due Process Violation as Prosecutor Did Not Suppress Evidence

Wade also argued that the prosecution suppressed evidence, a violation of Due Process under Brady v. Maryland.  Under Brady, the admission of evidence would have been a violation of Due Process if Wade had been able to prove that: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the prosecution; and (3) the evidence was “material to the defense.”  Evidence is deemed to be material to the defense when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”  Here, the Fourth Circuit determined that the prosecution did not withhold evidence that met this standard.

Wade’s Conviction Upheld

Finding that no prosecutorial misconduct had occurred and finding no Due Process violation, the Court affirmed the Wade’s convictions.

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4Nov

Repeated Violent Offenses Add Up to Thirty-Seven Months for Illegal Immigrant

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By Chad M. Zimlich

Today, in the criminal case United States v. Avila, the Fourth Circuit considered the question of whether it was proper for the district court to have used a prior felony conviction from California in increasing the sentencing of Mario Vasquez Avila to thirty-seven months in prison for illegal reentry following an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2).

The Use of a First-Degree Burglary Conviction under CPC §§ 459 and 460(a)

When sentencing Avila, the District Court for the Western District of North Carolina found that a conviction under California Penal Code §§ 459 and 460(a), which details the elements for first-degree burglary, qualified for an eight-level sentencing enhancement under the United States Sentencing Guidelines. The section in question was §2L1.2(b)(1)(C), which provided for an increase for any defendant who previously was deported, or unlawfully remained in the United States, after a conviction for an aggravated felony. Avila contended that felony did not fall under the definition of an “aggravated felony.” Furthermore, he argued that the district court’s explanation of his sentence was “insufficient.” The Fourth Circuit disagreed on both issues.

Avila Had an Exceedingly Long History of Criminal Conduct

Avila had quite the record that followed him into court. Starting as far back as 1990, Avila entered the United States illegally and was subsequently arrested for shoplifting. After his first arrest, he voluntarily returned to Mexico. However, three years later, after illegally reentering, he was convicted of assault in California in 1993 and sentenced to a year in prison. After this, he was removed to Mexico, and immediately reentered and was arrested in 1994 when he plead guilty to first-degree burglary and sentenced to twelve years in prison. After his release immigration officials removed him again, and he reentered, this time arriving in North Carolina where he was twice convicted for driving while impaired, resulting in prison sentences of thirty days and six months, respectively.

Following this, Avila assaulted a woman and a police officer and was charged with two counts of simple assault and one count of communicating a threat. It was only then that immigration officials became aware of Avila’s presence in the North Carolina penal system. They interviewed him on March 23, 2012, where he lied claiming he was a United States citizen. A federal grand jury indicted him for illegal reentry following an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2), to which he pled guilty. It was in the sentencing for this crime that the main issue in this case arose. The secondary issue was that, in applying “an individualized approach,” the district court recounted Avila’s personal characteristics and criminal history and explained that they caused a concern for the safety of the public. Avila objected to this explanation and argued it was “insufficient.”

The California Burglary Conviction Qualifies as an Aggravated Felony

Judge Agee, writing the opinion of the Court, affirmed the district court’s holding that Avila’s 1994 conviction of first-degree burglary qualified as an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C).

A Crime of Violence Must Look to the Substantial Risk of Force

Avila argued that the California burglary conviction was not a crime of violence, and in doing so relied on the elements of the crime. His argument relied on the fact that the California statute lacked an element of an unlawful or unprivileged entry, and he further argued that such a definition was read to be as broad as to include shoplifting. A “crime of violence” under 18 U.S.C. § 16 is defined as “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The Fourth Circuit determined it needed to look no further than to the Supreme Court’s decision in Leocal v. Ashcroft, where it was explained that “[Section] 16 relates . . . to the risk that the use of physical force against another might be required in committing a crime . . . [B]urglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.” Additionally, other courts have come to this same conclusion with California’s burglary statute.

The Fourth Circuit also distinguishes this case from that in Descamps v. United States, as that case dealt with a provision in the Armed Career Criminals Act, which did not contain a roster of enumerated offenses or list generic burglary as a qualifying crime. Instead, §16(b) speaks in descriptive terms of felonies that carry a substantial risk that force will be used. Because of this, the “crime of violence” definition was not restricted to generic burglary.

As to the claim that lacking an element of unlawful or unprivileged entry caused the definition to include shoplifting, the Fourth Circuit easily dismissed it, noting, “first-degree burglary requires entry into an inhabited dwelling.”

Avila’s Argument that His Sentence Wasn’t Sufficiently Individualized Holds No Weight

The Fourth Circuit also found that the district court’s explanation of its sentence was more than sufficient to preclude a finding of error. It reiterated that the explanation need not be exhaustive, merely that it be “sufficient ‘to satisfy the appellate court that [the district court] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” The district court had expressly stated that it considered Avila’s history and characteristics as a concern on the part of the Court for the “safety of the public.” Additionally, the Fourth Circuit rejected any kind of argument that the district court erred by failing to address his argument for a below-guidelines sentence, stating that Avila failed to explain in his brief what arguments the district court did not consider.

First-Degree Burglary Is a Crime of Violence

First-degree burglary, as defined in California Penal Code §§ 459 and 460(a), is a crime of violence within the meaning of 18 U.S.C. § 16(b) and therefore qualifies as an aggravated felony. Accordingly, the district court correctly applied the eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) when it calculated Avila’s sentence.

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3Nov

Fourth Circuit Reviews for Probable Cause

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By: Diana C. Castro

Today, in United States v. Jayad Zainab Ester Conteh, the Fourth Circuit affirmed by unpublished per curiam opinion the District Court of Maryland’s denial of a motion to suppress, holding there was probable cause to justify the issuance of a search warrant. The Fourth Circuit reviewed the District Court’s factual findings for clear error and its legal conclusions de novo.

Defendant Argues the Sworn Application Supporting her Arrest Warrant Was Insufficient to Establish Probable Cause.

On appeal the defendant raised three issues: (1) the sworn application supporting her arrest warrant was insufficient to establish probable cause; (2) the officer executing the warrant did not act in reasonable good faith reliance on the state commissioner’s determination of probable cause; and (3) the District Court abused its discretion in qualifying a witness as an expert in Sierra Leoneon Creole.

Defendant was Convicted of Conspiracy to Commit Bank Fraud, Aggravated Identity Theft, and Exceeding Authorized Access to a Computer Thereby Obtaining Information Contained in a Financial Record of a Financial Institution.

Conteh, a teller for the bank, accessed accounts with information personally identifying the account holders in a way that suggested her access was unauthorized. Several bank accounts were compromised when information for the accounts was changed and checks were ordered without authorization. Further, the owner of a vehicle observed attempting to retrieve checks ordered without authorization from one of the compromised accounts relied on a bank insider to provide him information.

Probable Cause to Justify an Arrest Means a Police Officer is Aware of Facts and Circumstances That Are Sufficient to Warrant a Prudent Person in Believing That the Suspect Has committed an Offense, Under the Circumstances Shown.

Determined by the totality of the circumstances, probable cause is a fluid concept that turns on the assessment of probabilities. United States v. Dickey-Bey, 393 F.3d 449, 453–54. In reviewing the state commissioner’s probable cause determination, the court may only ask whether the commissioner had a substantial basis for concluding there was probable cause. Under this standard, the court grants much deference to the commissioner’s assessment of the facts presented to him. United States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990).

Taking the facts of this case as a whole, the commissioner had a substantial basis to conclude that the supporting application established probable cause.

Alternatively, the Fourth Circuit Rejects the Defendant’s Claim That the Officer Did Not Rely on the Warrant in Good Faith.

Under the good faith exception, created by the Supreme Court of the United States in United States v. Leon, evidence obtained from an invalid warrant will not be suppressed if the officer’s reliance on the warrant was objectively reasonable. United States v. Perez, 393 F.3d 457, 461 (4th Cir. 2004).

Leon identifies four ways in which an officer’s reliance on a warrant would not qualify as good faith reliance. Conteh argued one of these exceptions, noting that an officer’s reliance on a warrant would not qualify as good faith if the warrant was so facially deficient that no reasonable officer could presume its validity.

However, the Court rejected, as unsupported by the record, Conteh’s assertion that probable cause is lacking because the application contains a “significant misstatement” that she was the individual who changed the information.

Reviewing for Abuse of Discretion, the Fourth Circuit Affirmed the District Court’s Decision to Qualify an Expert Witness.

In ensuring that evidence is reliable under Fed. R. Evid. 702, a district court “must decide whether the expert has ‘sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case.’” Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 162 (4th Cir. 2012). In making this decision, the court should “consider the proposed expert’s full range of experience and training.” United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009). Federal Rule of Evidence 702 “does not require any particular imprimatur.” United States v. Gutierrez, 757 F.3d 785, 788 (8th Cir. 2014).

Despite the facts that the witness does not hold degrees in Sierra Leoneon Creole, works as a teacher in another field, and had not acted as a translator for any government agency prior to his involvement in the case at bar, the Court concluded that the witness was properly qualified as an expert in Sierra Leoneon Creole based on his education and experience with the language. The witness testified regarding messages in Sierra Leoneon Creole obtained from the cellular phone seized from Conteh incident to her arrest.

Court of Appeals for the Fourth Circuit Affirmed.

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3Nov

Supervised Release Violation Sentencing Statute Relates Back to Original Offense

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By: Dan Menken

Today, in United States v. Ward, the Fourth Circuit affirmed the conviction of George A. Ward for violating the conditions of his supervised release. He was sentenced to 20 months imprisonment, which is the mandatory minimum under 18 U.S.C. § 3583(g), which Congress amended in 1994 to eliminate the statute’s minimum sentencing provision. In this case, the statute was amended after Ward committed the underlying offense, but after he engaged in the conduct that led to the revocation of his supervised release.

Ward Violated Parole Agreement by Testing Positive for Controlled Substances

In December 1994, Ward plead guilty to three counts of being a felon in possession of a firearm, two counts of distribution of crack cocaine, and one court of use of a firearm in furtherance of a drug trafficking crime. He ultimately received a sentence of 200 months, followed by a five-year period of supervised release. The supervised release prohibited Ward from illegally possessing a controlled substance.

In April 2013, the government filed a petition in the district court seeking to revoke Ward’s supervised release. The government alleged that Ward had tested positive for cocaine or marijuana on multiple occasions. At a hearing on the government’s petition, Ward admitted that he had possessed cocaine and marijuana on numerous occasions during his supervised release. The district court revoked Ward’s supervised release and sentenced him to 20 months in prison. In calculating Ward’s sentence, the court followed the version of 18 U.S.C. § 3583(g) that was in effect at the time he was sentenced for his underlying crimes. These guidelines specified that the defendant must serve a mandatory minimum sentence of one-third of his supervised release term.

Congress amended 18 U.S.C. § 3583(g) in September 1994, eliminating the mandatory minimum sentencing provision.

Did the District Court Err in Applying Former Version of 18 U.S.C. § 3583(g)?

Ward argued that the former version of the statute was not applicable because the statute was amended before he was originally sentenced and before he committed the acts in violation of his supervised release. In coming to their decision, the Fourth Circuit relied on Johnson v. United States, which held that a defendant was subject to the sentencing provisions of the statute in effect when the initial offense was committed. That court specifically held that “postconviction penalties relate to the original offense.” Thus, any violation of a supervised release would relate back to the time when the underlying offense was committed. The fact that Ward was not sentenced for his crimes until after the statute was amended is immaterial because the court must look back to the initial offense.

Moreover, under the federal Savings Statute, 1 U.S.C. § 109, absent a clear indication from Congress of retroactive application, a defendant is not entitled to “application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense.” Thus, the Savings Statute preserved the mandatory minimum punishment provision of § 3583(g).

The fact that Ward was not sentenced for his crimes until after the statute was amended is immaterial. Therefore, the district court correctly applied the former version of § 3583(g), which was the statute in effect when Ward committed the underlying crimes.

Did Mandatory Minimum Provision Violate Defendant’s Sixth Amendment Rights?

Ward further agues that the mandatory minimum provision in § 3583(g) violated his Sixth Amendment rights, because the factual findings required to impose that sentence were not made by a jury applying the standard of beyond a reasonable doubt. The Fourth Circuit once again turned to Johnson, which stated that a violation of the conditions of a supervised release “need only be found by a judge under a preponderance of the evidence standard.” However, they also noted that in Alleyne v. United States, the Supreme Court required a jury determination under the standard of beyond a reasonable doubt for any factual finding in a criminal trial that requires imposition of a statutory mandatory minimum sentence. In this case, the Fourth Circuit determined that Ward was facing a supervised release revocation, which stands in contrast to a criminal trial. According to Morrissey v. Brewer, “the full panoply of rights due a defendant in [a criminal prosecution] does not apply to parole revocations.” Additionally, those individuals on supervised release enjoy only “conditional liberty” because they already have been convicted of the criminal offense.

Thus, the Fourth Circuit concluded that Ward was not entitled to have the alleged supervised release violation proven to a jury beyond a reasonable doubt.

District Court’s Judgment Affirmed

The Fourth Circuit held that the district court did not err in applying the former version of 18 U.S.C. § 3583(g) in Ward’s supervised release revocation proceeding. The Court further held that Ward’s Sixth Amendment rights were not violated. Accordingly, the Court affirmed the district court’s judgment.

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2Nov

Correcting a District Court’s Sentencing Guideline Error

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By: Kaitlin Price

In U.S. v.  Williams, the Fourth Circuit affirmed the revocation of Defendant’s supervised release, but vacated the District Court’s sentence and remanded the case to resentencing because the district court used the wrong sentencing guidelines.

The Defendant, Ezekiel Elijah Williams, was sentenced to thirty-seven months of imprisonment for a Grade B violation of his supervised release. However, the court miscalculated the sentence.  Here, the defendant is a Category IV offender and committed a Grade B violation, thus the sentencing range should  have been between twelve and eighteen months.  When a court uses the wrong sentencing guidelines, it has committed a reversible error.  Thus, the Fourth Circuit vacated the sentence and remanded for resentencing.

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30Oct

“Armed Career Criminal” Classification Upheld by Fourth Circuit For Harsher Sentencing

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By Michael Mitchell

Is Enhanced Sentencing Proper when Defendant Has History of Violent Crime?

Today, in United States v. Bennerman, the Fourth Circuit considered whether the district court’s increased sentence for the Defendant as an “armed career criminal” was appropriate given his prior violent felonies in Connecticut.

Firearm Felony Results in Increased Sentence for “Armed Career Criminal”

Defendant Irving Bennerman pled guilty to possession of a firearm by a person previously convicted of a felony offense, in violation of 18 U.S.C. § 922(g)(1) (2012).  The district court classified Bennerman as an “armed career criminal,” which carries harsher sentencing under the Armed Career Criminal Act (“ACCA”), because of his history of violent felonies.  Bennerman was sentenced to 210 months in prison as a result of three prior convictions for violent felonies or serious drug offenses.  Although only two violent felonies are necessary for increased sentencing under the ACCA, Bennerman argued that his first degree robbery conviction in Connecticut did not qualify as a violent felony offense within the scope of the ACCA because the statute allegedly punished “more than just the crime of robbery.”

First Degree Robbery Penalizes “Immediate Use of Force” in Process of Crime

Contrary to the Defendant’s argument, the Connecticut statute for first degree robbery does not punish accessories after the fact.  Conn. Gen. Stat. § 53a-133 penalizes a person who commits robbery, and in the process of the larceny, “uses or threatens the immediate use of force” upon the owner of the property or someone resisting the crime.  Specifically, conviction under Conn. Gen. Stat § 53a-134(a) is appropriate when the perpetrator or another participant, in the process of committing the robbery, “causes physical injury to a non-participant in the crime, is armed with a deadly weapon, uses or threatens to use a dangerous instrument, or displays or threatens the use of what he represents to be a gun.”

Violent Felony Statute Does Not Punish Accessories After the Fact

In an unpublished per curiam decision under de novo review, the Fourth Circuit determined that Bennerman’s first degree robbery conviction under the Connecticut statute was sufficient for qualifying him for the classification of an “armed career criminal” under the ACCA.  The court rejected Bennerman’s argument that the statute covered “far more conduct than the generic crime” and did not constitute a “violent felony” within the meaning of the ACCA.  Under 18 U.S.C. § 924(e)(2)(B), violent felony means “a crime that is punishable by more than one year” and the use of physical force or the risk of physical injury in the perpetration of a burglary.  The Fourth Circuit reasoned that “[a]n accessory after the fact is not a participant in the crime, . . . only becom[ing] involved after the commission of a robbery.”  Because an accessory after the fact was not considered a participant in the crime, the statute did not punish “more than just the crime of robbery” as the Defendant alleged.

Fourth Circuit Affirms Harsher Sentencing for “Armed Career Criminal”

The Fourth Circuit affirmed Bennerman’s first degree robbery conviction as well as the district court’s classification of the Defendant as an “armed career criminal,” upholding his 210-month sentence because first degree robbery qualifies as a violent crime under the ACCA.

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