Wake Forest Law Review
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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29Oct

Private Correctional Officers Occupy “Sensitive Position” For Sentencing Purposes

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By Patrick Southern

Did the District Court Err in Determining a Private Correctional Officer Occupies a “Sensitive Position” for the Purpose of Enhanced Sentencing?

Today, in United States v. Dodd, the Fourth Circuit decided a matter of first impression. The appellant Dodd challenged a decision to enhance the sentence he received after pleading guilty to bribing a correctional officer and conspiracy. Specifically, Dodd argued private correctional officers do not occupy a “high-level decision-making or sensitive position” as defined in sentencing guidelines. The Fourth Circuit disagreed, affirming his sentence.

Appellant Bribed Private Correctional Officers

The case began when staff members at a private correctional institution (which contracts with the Federal Bureau of Prisons to house inmates) found prohibited items in Dodd’s cell. An investigation revealed Dodd was paying correctional officers to smuggle cell phones and tobacco products into the institution, where he would then re-sell them to other inmates.

Dodd pleaded guilty to bribing a private correctional officer and to conspiracy. Prior to sentencing, a probation officer determined that sentencing guidelines provided for a sentence of thirty-seven to forty-six months for Dodd. The calculation included a four-level enhancement under U.S.S.G. § 2C1.1(b)(3), which applies when “the offense involved an elected public official or any public official in a high-level decision-making or sensitive position.” Without the enhancement, the sentencing range would have been twenty-four to thirty months.

Dodd objected to the enhancement, arguing the officers did not occupy a “high-level decision-making or sensitive position.” The probation officer recommended the district court find that correctional officers occupy a sensitive position because they “have substantial authority, influence, and control over inmates and are responsible for the overall management, safety, and security of a given facility.”

The District Court found that correctional officers occupy a sensitive position because they have “the authority and ability to directly and significantly influence inmates’ lives and the entire facility’s safety with the decisions he or she makes.” Dodd then appealed to the Fourth Circuit.

Private Correctional Officers Occupy a “Sensitive Position” For Sentencing Purposes

The commentary on the sentencing guidelines provides a definition for a “high-level decision-making or sensitive position.” Such positions are “characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process.” The definition continues to note that officials in a sensitive position “include a juror, a law enforcement officer, an election official, and any other similarly situated individual.”

Prior to this case, only the Fifth Circuit had considered whether correctional officers hold a sensitive position, and then only in unpublished opinions. It held they do because they “have the authority and the ability to directly and significantly influence inmates’ lives and the entire facility’s safety with the decisions [they] make.” The Fifth Circuit cases defined a sensitive position as “one that has power to affect the integrity and workings of the judicial and law enforcement system.

Private Correctional Officers are “Similarly Situated” to Law Enforcement Officers

Dodd made four arguments as to why private correctional officers should not be considered to hold a “sensitive position.” The Fourth Circuit dismissed them all in turn.

First, he argued private correctional officers don’t make “any governmental decision” or wield “any influence, much less substantial influence, over any government agency decision.” The Fourth Circuit responded that the correctional officers operated under contract with the Federal Bureau of Prisons, and the arrangement empowered officers to make decisions “on behalf of” the Bureau of Prisons. Dodd’s bribes caused the officers to wield their authority in improper ways.

Second, Dodd said he did not intend for his bribes to influence official acts, arguing that the officers performed no official act because guards delivering contraband are operating outside their official capacity. The court responded that any public official acting pursuant to a bribe is acting contrary to his or her role. Dodd bribed the officers specifically to use their position to undermine the institution’s security.

Third, Dodd argued private correctional officers are not similarly situated to jurors, law enforcement officers, or election officials (the examples from the Guidelines commentary) because private correctional officers do not take an oath, are not publicly employed, do not determine guilt or innocence, and cannot arrest members of the public. The court agreed that private correctional officers are not identically situated to the examples, but noted that is not the standard. The definition in question includes those who are “similarly situated” to the listed examples. Private correctional officers “wield the coercive power of the state to maintain order and safety among the populations they protect.” Bribes lead to a violation of the public trust placed in them.

Finally, Dodd said sentencing enhancement has “no conceivable outer limits” if it covers private correctional officers. The Fourth Circuit responded that these officers are responsible for maintaining safety and security among a captive, potentially dangerous population, and as such they play an integral role in the operation of the justice system, distinguishing them from most public officials

Ultimately, the court said private correctional officers are “similarly situated” to law enforcement officers, which are specifically mentioned in the definition in the commentary to the sentencing guidelines. As a result, they are considered to hold a “sensitive position” as outlined under the sentencing guidelines. Thus, the Fourth Circuit affirmed the sentencing enhancement as it applied to Dodd.

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29Oct

Fourth Circuit Upholds Conviction and Sentencing in Drug-Trafficking and Firearm Case

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By: Carson Smith

Defendant Contends Possession of a Firearm Conviction and Multiple Sentencing Enhancements.

In United States v. Pineda, the Fourth Circuit upheld the lower court’s conviction and sentencing of the defendant, Jesus Pineda. The Eastern District of North Carolina convicted the defendant on two counts of distribution of cocaine, possession of a firearm in furtherance of drug-trafficking, and possession of a sawed-off shotgun. The district court sentenced the defendant to 132 months in prison. On appeal, the defendant challenged the “possession of a firearm in furtherance of drug-trafficking” conviction as well as several sentencing enhancements which greatly increased the length of his imprisonment. The Court affirmed the possession conviction based on specific statements and actions, involving the handgun, made by the defendant during the cocaine transaction. Furthermore, the Court upheld the sentencing enhancements applied by the district court.

Defendant Convicted for Selling Cocaine and Firearms to Confidential Informant.

On November 30, 2011, a confidential informant (CI) purchased an ounce of cocaine and stolen assault rifle from Raul Sanchez. Sanchez acquired the items earlier in the day from Jesus Pineda and Pineda accompanied Sanchez to the transaction with the CI. Shortly thereafter, Pineda contacted the CI directly and proposed cutting Sanchez out of any future deals. On January 25, 2012, the CI purchased 54 grams of cocaine and a 12-gauge sawed-off shotgun from Pineda. The two had also discussed the purchase of a .380 caliber handgun; however, Pineda, at the meeting, refused to sell the gun. On February 8, 2012, the CI purchased 54 grams of cocaine and the .380 caliber handgun from Pineda. Subsequently, Pineda was arrested, charged, and convicted.

Court upholds “Possession of a Firearm in Furtherance of Drug-Trafficking” Conviction Because Defendant Exposed the Firearm During the Transaction and Emphasized the Firearm’s Necessity.

On appeal, Pineda contended that mere possession of a firearm during a drug transaction does not constitute “possession of a firearm in furtherance of drug-trafficking.” According to 18 U.S.C. § 924(c)(1)(A), the government must present evidence indicating that the possession of a firearm “furthered, advanced, or helped forward a drug trafficking crime.” At trial, it was established that during the January 25, 2012 meeting, Pineda took out the .380 caliber handgun and “placed it underneath his leg while conducting the drug transaction.” The CI asked to buy the gun, but Pineda refused, stating that it was “the only piece” he owned. The Court affirmed the conviction, stating that the evidence was sufficient enough for a reasonable juror to determine that the firearm was critical to Pineda’s drug trafficking activities.

Sentencing Enhancement Involving Hearsay Evidence Upheld Based on the Reliability of the Information.

Pineda also raised several issues challenging the sentencing enhancements applied by the district court. First, Pineda argued that the district court should not have factored the November 30, 2011 meeting into sentencing considerations because the only evidence tying Pineda to the Sanchez-CI purchase were hearsay statements by Sanchez. In sentencing, a district court is allowed to consider information that would otherwise be kept out of trial due to evidentiary rules as long as the information “has a sufficient indicia of reliability to support its probable accuracy.” In reviewing the reliability of information surrounding Pineda’s involvement in the November 30, 2011 transaction, the Court found persuasive the fact that Pineda was present at the transaction. Therefore, the Court determined that the information had a sufficient indicia of reliability.

Sentencing Enhancement Involving Three or More Illegal Transactions Upheld Based on the High Degree of Similarity Between the Transactions.

Second, Pineda argued that the November 30, 2011 transaction was not part of a common scheme or plan as the two subsequent deals because Pineda played a different role in the November 30 transaction and “there was no evidence showing that the three transactions were part of a larger pattern of illegal activity.” In order for the three transactions to be part of a common scheme or plan, it must be shown that they are “substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.” Since Pineda was the seller of the cocaine and firearms in each of the three transactions, the Court held that the transactions had a “relatively high degree of similarity.” Therefore, the Court held that the district court did not err in grouping the three transactions for sentencing purposes.

Court Holds That Double Counting Involving the .380 Caliber Firearm Did Not Occur.

Finally, Pineda argued that the district court improperly double counted his possession of the .380 caliber handgun in applying the sentencing guidelines. Pineda’s sentencing was increased “for committing an offense that involved three or more firearms.” However, Pineda claimed that a statutory limitation prevented the trial court from counting the .380 caliber gun, for sentencing purposes, under both the “possession of a firearm in furtherance of drug-trafficking” conviction and the “three or more firearms” enhancement. “Double counting occurs when a provision of the Guidelines is applied to increase punishment on the basis of a consideration that has been accounted for by application by another Guideline . . . . Double counting is generally authorized unless the Guidelines expressly prohibit it.” The Court determined that the Guidelines did not expressly prohibit double counting and that double counting did not occur in this case. In particular, the Court held that the “in furtherance” conviction pertained to “particular unlawful uses of a firearm,” whereas the “three or more firearms” enhancement pertained to the number of firearms involved. Therefore, this was not an instance of double counting. The Court held that the sentencing enhancements applied by the trial court were proper.

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28Oct

Only Substantial Assistance Factors Considered in a § 3553(e) Motion

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By: Katharine Yale

Did the District Court Err in Declining to Consider Any 18 U.S.C. § 3553(a) Factors Other Than Substantial Assistance when Determining the Extent of Appellant’s Sentence Reduction Below the Mandatory Minimum?

Today, in United States v. Spinks, the Fourth Circuit considered the Appellant’s challenge to his eighty-four month sentence for conspiracy to distribute cocaine and cocaine base. The Appellant argued that the district court erred by solely considering factors related to substantial assistance in reducing his sentence below the mandatory minimum. He contended that other 18 U.S.C. 3553(a) factors should have been considered.

Appellant Returns to the Fourth Circuit.

The appellant, Spinks, pled guilty to one count of conspiracy to distribute cocaine and cocaine base in 2008. Due to a filing of an Information of Prior Conviction, the district court determined that a 240 month sentence was appropriate. The government then moved, pursuant to 18 U.S.C. § 3553(e), for a thirty percent downward departure on Spinks’ sentence based on his substantial assistance in the prosecution of a co-defendant. Ignoring factors other than those related to the substantial assistance, the district court granted the reduction, resulting in a 168 month sentence.  On appeal, this court affirmed the sentence.

In 2012, Spinks filed a motion requesting a reduction in his sentence because the underlying felony supporting his initial sentencing enhancement no longer qualified for the enhancement, after the ruling in United States v. Simmons. After resentencing, Spinks’ sentence became 120 months. The government renewed its § 3553(e) motion and the district court again granted the thirty percent departure, resulting in a eighty-four month sentence.

Spinks then asked the court to consider “some additional amount” of reduction due to rehabilitation that occurred since his first sentencing. The district court concluded that it did not have authority to consider § 3553(a) factors once it had departed below the mandatory minimum sentence.

Under § 3553(e), Only a Defendant’s Substantial Assistance and Factors Related to That Assistance May be Considered when Determining the Extent of a Departure Below a Mandatory Minimum Sentence.

Spinks appealed on the basis of the district court’s denial of consideration of factors other than his substantial assistance under § 3553(e). He contended that his post-conviction rehabilitation should have been considered in determining the extent of his reduced sentence. Spinks relied on two cases, United States v. Davis and Pepper v. United States.

Distinguishing both Pepper and Davis, and relying on United States v. Hood, the court emphasized that the extent of a reduced sentence under § 3553(e) can only be influenced by a defendant’s substantial assistance when a further departure would be below the mandatory minimum sentence.

Factors Related to Appellant’s Rehabilitation do not Fall Under § 3553(e) Because They are not Related to his Substantial Assistance, and the Cases upon Which Appellant Relied do not Apply to These Facts.

This court found that Hood controlled under the facts of this case. In Hood, the issue was the same as here: can a district court consider non-assistance factors when determining the extent of a reduced sentence under § 3553(e)? The Hood court concluded that because Congress has authorized a departure from the minimum sentence for this limited purpose, only the defendant’s substantial assistance and factors related to that assistance could be considered under § 3553(e). Thus, in this case, factors relating to anything other than Spinks’ substantial assistance should not have been considered, and the district court was correct in declining to consider Spinks’ rehabilitation.

Spinks contended that Davis overruled Hood and permits consideration of other factors because in that case, other factors were considered in a motion for sentence reduction under rule 35(b) of the Federal Rules of Criminal Procedure. The Fourth Circuit rejected this argument because here, the motion before the court was a § 3553(e) motion, not a 35(b) motion. The court emphasized the differences in the language of the two statutes. Section 3553(e) provides that the court can reduce the sentence “so as to reflect” substantial assistance, while Rule 35(b) does not contain language that the reduction must “reflect” the defendant’s assistance.

Spinks also contended that the Supreme Court decision Pepper abrogated Hood. In Pepper, the Supreme Court held that after a defendant’s sentence has been set aside on appeal, a sentencing court may consider a defendant’s post-sentencing rehabilitation to support a sentence outside of the advisory Guidelines range.   The Fourth Circuit rejected this argument because the Pepper court made clear that the holding applied to variances “from the now-advisory Federal Sentencing Guidelines range.” In this case, Spinks was not seeking a variance from the advisory Guidelines range, but instead was seeking a departure from a mandatory minimum.

The District Court Was Correct in Only Considering Substantial Assistance Factors.

Based on the language of the statute and the reasoning in Hood, the Fourth Circuit held that the district court did not err by solely considering Substantial Assistance factors under § 3553(e).  The court affirmed the appellant’s reduced sentence.

Dissenting Judge Would Not Make the Distinction Between § 3553(e) and Rule 35(b).

The dissent would not have made the distinction between § 3553(e) and Rule 35(b). In the advisory committee notes to Rule 35(b), the committee states that the omission of “reflect” (and other changes) in Rule 35(b) “are intended to be stylistic only.” Thus, based on the committee note and the reasoning in the Ninth Circuit case, United States v. Tadio, Senior Circuit Judge Davis would not make the distinction between the two and would allow other factors to be considered in both circumstances.   However, because Spinks failed to offer sufficient evidence regarding his rehabilitation, Judge Davis concurred in the judgment and voted to affirm the sentence.

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27Oct

Fourth Circuit Denies Certificate of Appealability on § 2255 Motion.

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By Marcus Fields

Is the Denial of a Motion Attacking a Sentence Appealable Absent a Certificate of Appealability?

A district court’s order denying relief on a prisoner’s 28 U.S.C. § 2255 motion attacking a federal sentence is not appealable unless a Circuit justice or judge issues a certificate of admissibility pursuant to 28 U.S.C. § 2253(c). Today, in United States v. Anderson, the Fourth Circuit denied a certificate of admissibility and dismissed Marion Anderson’s appeal from the district court’s denial of his 28 U.S.C. § 2255 motion.

A Certificate of Appealability will not be Granted Unless a Constitutional Right has been Denied.

Quoting directly from the statute, the Fourth Circuit notes that “a certificate of appealability will not issue absent ‘a substantial showing of the denial of a constitutional right.’” It then notes that this standard differs depending on whether the district court denies a prisoner relief on the merits or on procedural grounds.   If denied on the merits, the prisoner must only show that “reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong.” If denied on procedural grounds, the prisoner must show that both the procedural ruling and the “claim of the denial of a constitutional right” are debatable.

Anderson did not Make the Showing Necessary to Receive a Certificate of Appealability.

After independently reviewing the record the Fourth Circuit determined that Anderson had not made a substantial showing of the denial of a constitutional right and was therefore not entitled to a Certificate of Appealability.

Anderson’s Appeal Dismissed.

The Fourth Circuit denied Anderson a certificate of admissibility and dismissed the appeal. It dispensed with oral arguments determining that they would not help the decisional process.

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27Oct

Fourth Circuit Affirms that Statutory Minimum Sentence Imposed Pursuant to 18 U.S.C. § 922(e) Does Not Conflict with § 3553(a).

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By: Kelsey Kolb

Friday, in United States v. Stewart, the Fourth Circuit affirmed the District Court for the District of Maryland’s 180-month armed career criminal sentence against Stewart. Stewart pled guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012), to which the district court attached the 180-month sentence, pursuant to 18 U.S.C. § 924(e) (2012).

Did the district court err in its imposition of both a statutory mandatory minimum and increased statutory maximum sentence?

Stewart contended that the district court’s imposition of the statutory mandatory minimum sentence was in direct conflict with 18 U.S.C. § 3553(a) (2012), which mandates the court to impose a sentence that is “sufficient but not greater than necessary.” Stewart further appealed his statutory maximum sentence, arguing that the district court violated his Fifth and Sixth Amendment rights by increasing his sentence based on facts that were neither charged on the indictment, nor submitted to the jury.

The § 924(e) mandatory minimum does not conflict with the sentencing mandate of § 3553(a).

The Fourth Circuit held that § 3553(a) was not controlling in this case and thus, that the mandatory minimum was proper. The court reasoned that 18 U.S.C. § 3551(a) only yields to § 3553(a), the general criminal sentencing provision, if there is no other specific mandatory sentencing provision on point. Consequently, the “no greater than necessary” language from § 3553(a) would not apply in this case since there was another specific provision on point, § 924(e). Furthermore, even if § 3553(a) were controlling in this case, the court reasoned that the “no greater than necessary” language does not authorize a district court to sentence below the mandatory statutory minimum.

The increased statutory maximum sentence is not in violation of Stewart’s Fifth or Sixth Amendment rights.

The court briefly held that this claim was foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 228–35 (1998).

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23Oct

Fourth Circuit Affirms Decision to Classify Individual as an Armed Career Criminal

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By:  Steven M. Franklin

Yesterday, in U.S. v. Fikes, the Fourth Circuit affirmed the decision by the District Court for the Middle District of North Carolina to classify Mr. Kevin Fikes, Jr., as an armed career criminal.

What Happened?

Mr. Fikes pleaded guilty to possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The District Court designated Mr. Fikes as an armed career criminal, and thus sentenced him to 180 months in prison.

Is There a Problem?

On appeal, Mr. Fikes contended that the District Court erred in two regards. First, the District Court should not have considered predicate offenses that were neither pleaded in the indictment nor proven to a jury beyond a reasonable doubt to designate him as an armed career criminal. Second, because his predicate offenses were consolidated, the offenses should not have been considered separately to satisfy the armed career criminal enhancement.

No Problem Here, Mr. Fikes

In regard to Mr. Fikes first contention, the Fourth Circuit concluded that the District Court did not err. Even if a conviction is not found by a jury, the fact of a prior conviction nonetheless remains a valid enhancement. The Fourth Circuit also concluded that the District Court did not err in regard to Mr. Fikes’ second contention because predicate offenses do not need to be tried or sentenced separately to be considered “separate offenses” under the armed career criminal enhancement.

The Fourth Circuit Affirms

For these reasons, the Fourth Circuit affirmed the District Court’s decision to classify Mr. Fikes as an armed career criminal.

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22Oct

Fourth Circuit Holds Improper Evidence Was Harmless Error

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By Joshua P. Bussen

 Issues Raised by the Defendant

 Today, in U.S. v. Briley, the Fourth Circuit addressed two issues. First, whether assault is a required element of the “physical contact” provision of 18 U.S.C. § 111; and second, whether Federal Rule of Evidence 404(b) excludes prior “bad act” evidence where the two acts in question only share some similarities.

The Events of January 12, 2012

On January 12, 2012, two plain-clothes Park Police officers were patrolling the Washington Sailing Marina in Alexandria, Virginia. The Marina is a recreational area of the Dangerfield Island National Park where some have taken the “recreational” title to the limit; the Marina is a known hot spot for “sexual encounters.” While on patrol, the officers observed two individuals—one later determined to be the defendant—beginning to partake in the Marina’s reputed “recreational” activity in the front seat of an SUV. The officers called for backup and two officers in police marked tactical attire arrived and approached the vehicle.

Upon reaching the SUV, officers instructed the men to exit the vehicle. The defendant’s recreational companion quickly complied; the defendant would not go so easily. While attempting to remove the defendant from the vehicle, the defendant struck one of the officers in the arm, side, and lower back. The officer sustained various lower back injuries from the incident; his casualties would not be the worst. Another officer began striking the defendant in an attempt to loosen his grip in the SUV. The defendant returned a barrage of kicks to the officer’s abdomen; the kicks would later lead to impairment of the officer’s pancreas and the removal of his gallbladder. Eventually the defendant agreed to exit the vehicle, but again began resisting arrest. The officers eventually forced handcuffs onto the defendant, ending the tussle.

Later, in March, 2012, the defendant was again arrested for committing sexual acts in the same Marina parking area; fortunately for the officers, he did not again resist arrest.

18 U.S.C. § 111 and Fed. R. Evid. 404(b)

Under 18 U.S.C. § 111, whoever “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any [federal officer] while engaged in or on account of the performance of official duties . . . shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.”

Under Fed. R. Evid. 404(b), “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character,” however, such evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

The Law in This Case

On appeal, the Fourth Circuit held that assault is not an element of the “physical contact” portion of § 111. The court reasoned that requiring assault as an element of the “physical contact” portion of § 111 would: (1) render five of the six words within the statute inoperative; (2) would stray from the congressional intent of protecting federal officers; (3) would leave federal officials without protection for carrying out federal functions; and (4) produce an “absurd result,” allowing individuals to impede, intimidate, and interfere with federal officers so long as they did not commit assault.

Conversely, the court found that the 404(b) evidence came far to close to pure propensity evidence. The March arrest of defendant was similar to the January arrest in that the defendant was found engaging in obscene public acts in the same general area and in the same SUV. However, the defendant did not resist arrest on the March occasion. The court felt that this March incident was not only too dissimilar to the January incident to be “plan” or “intent” evidence, but also unnecessary in a case where multiple officers testified as to the defendant’s actions.

The Fourth Circuit’s Determination

The Fourth Circuit affirmed the holding of the lower court. Despite finding the 404(b) evidence should have been excluded, the overwhelming evidence against the defendant in this case rendered the admission of improper evidence harmless error.

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21Oct

Fourth Circuit Dismisses Sentencing Appeal as Moot

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By: Caroline Daniel

Is a Defendant’s Sentence Appealable if He is Released While the Appeal is Pending?

A defendant’s sentence is not necessarily appealable if he is released while the appeal is pending. Today, in United States v. Duane McAtee, the Fourth Circuit dismissed the Defendant’s appeal of his six month conviction as moot.  Duane McAtee was convicted of contempt of court, and was sentenced to serve six months.  He appealed this conviction, but while his appeal was pending, he was released.

On Appeal, the Court May Address Sua Sponte a “Live Case or Controversy.”

The Fourth Circuit addressed McAtee’s claim sua sponte.  Citing Friedman’s, Inc. v. Dunlap, the Court stated, “We may address sua sponte whether an issue on appeal presents ‘a live case or controversy . . . since mootness goes to the heart of the Article III jurisdiction of the courts.”  Here, the Court determined that a live case or controversy no longer existed.

McAtee’s Sentence No Longer Presented a “Live Case or Controversy.”

When the Court addressed McAtee’s appeal, he had already been released from his imprisonment.  The Fourth Circuit implied that McAtee’s appeal might have been preserved if he had raised “any collateral consequences of it.”  However, McAtee did not raise any collateral consequences.  Coupling this with his early release, the Fourth Circuit held that McAtee’s appeal no longer contained any live case or controversy regarding the duration of his incarceration.

McAtee’s Appeal Dismissed as Moot.

Finding that there was no appealable controversy remaining after McAtee’s release, the Fourth Circuit dismissed his appeal as moot.  The Court dispensed with oral argument, determining that the facts that were before the panel were sufficient pieces of evidence to warrant dismissal.

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21Oct

District Court Has Discretion to Ratchet Up Repeat Offender’s Sentence

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By Chad M. Zimlich

Today, in United States v. Locklear, the Fourth Circuit, finding no error, affirmed the district court’s sentencing of Clifton Kelly Locklear to 100 months of imprisonment.

Whether a Sentence Forty-three Months Above the Guidelines Is an Abuse of Discretion

The only issue on this appeal was whether or not the District Court of the Eastern District of North Carolina abused its discretion by giving Locklear a sentence that was forty-three months beyond the applicable range suggested by the U.S. Sentencing Guidelines Manual. Locklear argued that the sentence was not substantively reasonable, specifically because of his mental health issues.

Defendant’s Possession of a Stolen Firearm

Clifton Kelly Locklear pleaded guilty as part of a plea deal to possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j), 924 (2012). He was subsequently sentenced to 100 months of imprisonment, which was an upward variance from the forty-six to fifty-seven months that were suggested by the Guidelines.

The District Court Has Broad Discretion in Sentencing

In determining an appropriate sentence, the district court has broad discretion to take into account multiple factors, among them those enumerated in 18 U.S.C. § 3553(a) (2012). The Fourth Circuit’s role in reviewing a district court’s sentence is simply one of deciding whether or not the sentence was reasonable, which is a deferential abuse of discretion standard. Furthermore, this standard stays the same whether a sentence falls within, above, or below the Guidelines range.

In looking at reasonableness, the Fourth Circuit looked at the district court’s calculation of Locklear’s advisory Guidelines range, whether the court gave the parties an opportunity to argue for an appropriate sentence, whether the § 3553(a) factors were considered, whether the sentence was based on clearly erroneous facts, or, finally, whether the court failed to explain the sentence chosen. In each of these, the court is given “due deference” because of the flexibility it has in fashioning a sentence, meaning there either has to be a clear procedural error or an unreasonable use of discretion for the Fourth Circuit to overturn a sentence.

The Reasonableness of the District Court’s Use of the § 3553(a) Factors

After reviewing the record and the parties’ briefs, the Fourth Circuit considered the calculation of Locklear’s Guidelines range to be substantively reasonable. This was mainly due to the court’s use of the § 3553(a) factors, such as Locklear’s prior criminal history and characteristics, the court’s need to promote respect for the law, the need to protect the public, and the need for adequate deterrence. All of these factors weighed in favor of the lengthier sentence, lending further support for the reasonableness of the sentence.

Lastly, turning to Locklear’s argument that the 100-month sentence was unreasonable in light of his mental health issues, the Fourth Circuit refused to substitute its judgment for that of the district court as the district court has “extremely broad discretion” when weighing the § 3553(a) factors. In this sentencing, the district court was acting well within its discretion.

Sentence Was Reasonable, There Was No Abuse of Discretion

The Fourth Circuit found that there was no reversible error, that Locklear’s sentence was reasonable, and affirmed the district court’s judgment.

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