Wake Forest Law Review
10Nov

Fourth Circuit Remands Burglary Case with Sentencing Guidelines

Categories: 4th Cir. Blog Criminal Cases
Comments Off on Fourth Circuit Remands Burglary Case with Sentencing Guidelines

qtq80-qCx3wT

By Sophia Blair

On November 10, 2016, the Fourth Circuit issued a published opinion in the criminal case, United States v. Williams. Earnest Lee Williams Jr. (“Williams”) was charged with attempting to enter a bank with the intent to commit a felony and larceny in violation of 18 U.S.C. § 2113(a). Williams pleaded guilty to the charge and was sentenced under U.S.S.G. § 2B3.1, pursuant to its robbery guidelines. Williams appealed his sentence, arguing that the district court erroneously applied the robbery guideline under U.S.S.G. § 2B3.1 instead of the burglary guideline under U.S.S.G. § 2B2.1. The Fourth Circuit agreed with Williams, vacated his sentence, and remanded to the district court for resentencing under the burglary guideline.

Facts and Procedural History

In January 2014, Williams approached a Southern Bank building (“Bank”) in Rocky Mount, North Carolina. Williams was unarmed and, as he later admitted to police, simply planned on telling the bank tellers to place the Bank’s money in his bag. Williams entered the exterior doors of the Bank into an anteroom. Before he could enter the interior doors into the Bank, a teller who thought she recognized Williams from a previous robbery locked all of the doors. The teller asked Williams through an intercom whether he had an account and he said he did, though he had left his bank card in his car. The teller unlocked the exterior doors and told Williams to use the drive-through window. Williams went back to his car and drove off. The police were called and they quickly apprehended Williams. After being read his rights, Williams admitted to the police that he was in need of money as well as his plan to rob the Bank.

In August 2014, a federal grand jury indicted Williams for violating 18 U.S.C. § 2113(a). Williams pleaded guilty to the charge. § 2113(a) is covered by four Sentencing Guideline section including U.S.S.G. § 2B3.1 (Robbery) and § 2B2.1 (Burglary). The probation officer calculated Williams’ imprisonment range at 37–46 months according to the robbery guideline.

Williams objected to the application of the robbery guideline for sentencing because he pled guilty to an indictment for burglary without reference to force or violence. Specifically, Williams was charged with “attempting to enter a bank . . . with the intent to commit in such bank a felony affecting such bank . . . .” Given the lack of force or violence, the burglary guideline was more applicable, and would yield an imprisonment range of 10–16 months.

The probation officer contended that the robbery guideline was more applicable because it contained a sentencing enhancement for targeting a financial institution, while the burglary guideline did not. The district court agreed with the probation officer that the robbery guideline would apply, and sentenced Williams to a term of 38 months. Williams appealed.

Improper Application of Robbery Guideline

The Fourth Circuit agreed with Williams that the burglary guideline should apply. When a conviction falls under the express terms of multiple guidelines, the sentencing court must apply the most applicable one. Relying on United States v. Boulware, the Fourth Circuit held that the most applicable guideline is determined by comparing the guideline texts with the charged misconduct. The court should not compare the guidelines to the statute or the actual conduct because they may implicate several guidelines or include factors of indicted offenses instead of elements.

18 U.S.C.  § 2113(a)

2113(a) may be violated either by robbery or burglary. Bank robbery involves attempting to take from a bank by force, intimidation, or extortion, while burglary simply involves entering a bank with the intent to commit a crime. Because there was no element of force in the indictment, the Fourth Circuit held that Williams should have been sentenced under the burglary guidelines.

Disposition

Because there was no element of force in the indictment to which Williams pled, the Fourth Circuit vacated the district court’s judgment and remanded the case for resentencing under the burglary guideline § 2B2.1.

Tags:
26Oct

Fourth Circuit Declines to Invalidate Petitioner’s Guilty Plea

Categories: 4th Cir. Blog Criminal Cases
Comments Off on Fourth Circuit Declines to Invalidate Petitioner’s Guilty Plea

By Ali Fenno

On October 25, 2016, the Fourth Circuit issued a published opinion in the criminal case of Dingle v. Stevenson. In Dingle, the Fourth Circuit addressed whether the Supreme Court’s holding in Roper v. Simmons, which invalidated the use of capital punishment against juvenile offenders, should apply retroactively to undo a guilty plea made by Ronald Donald Dingle (“Dingle”). After examining the scope of the holding in Roper and the nature of plea bargains, the Fourth Circuit held that Roper cannot apply retroactively to undo a guilty plea and affirmed the lower court’s dismissal of Dingle’s petition.

Lower Courts Repeatedly Dismiss Dingle’s Petitions

In 1993 the state of South Carolina (the “State”) charged Dingle with murder, assault and battery with intent to kill, first degree burglary, kidnapping, pointing a firearm, two counts of possession of a weapon during a violent crime, and two counts of possession of a sawed-off shotgun. Because the State intended to pursue the death penalty, Dingle plead guilty in exchange for life imprisonment with the possibility of parole.

When it was later discovered that the consecutive nature of Dingle’s sentences precluded parole, an integral part of the plea bargain, Dingle filed an application for post-conviction relief (“PCR”). The PCR court vacated his sentences and remanded for sentencing consistent with the intent of the plea agreement or for a new trial.

Several years later, a hearing still had not been held, so Dingle filed a motion for a speedy trial. The hearing was then held on July 28, 2005, and Dingle contended that his guilty plea should be withdrawn. He argued that the benefit of his plea bargain, avoiding the death penalty, was removed by the Supreme Court’s recent decision in Roper, which held that it was a violation of the Eighth Amendment for the death penalty to be used against juvenile offenders. The Court of General Sessions disagreed, rejecting Dingle’s request for a new trial and holding that pleas should be evaluated based on the law that existed in 1995. The South Carolina Supreme Court affirmed this decision, finding that Roper did not remove the benefit of the plea bargain.

Dingle again filed an application for PCR in 2009, arguing that Roper retroactively applied to his case and, as such, his guilty plea was involuntary because it was made to avoid cruel and unusual punishment. However, the PCR court found that Dingle’s claim was barred by res judicata. Dingle’s subsequent appeal and third petition were unsuccessful.

Dingle also filed a petition for a writ of habeas corpus under 28 U.S.C. § 2554 in the United States District Court for the District of South Carolina. He raised four claims of error, but the district court dismissed the claims without prejudice.

On September 13, 2013, Dingle filed the instant § 2554 petition. The petition contested Dingle’s conviction on six grounds, but the district court adopted the magistrate judge’s recommendation to deny the petition in its entirety.

Issues on Appeal

The Fourth Circuit granted a certificate of appealability to determine the single issue of whether Roper may be applied retroactively to invalidate Dingle’s guilty plea. Dingle argued that the holding in Roper invalidated his guilty plea because (1) it was a substantive rule so applied retroactively to his case, and (2) if it would be improper for the state to seek the death penalty against him now, then it was also improper in 1995. Thus, his plea was invalid because it was attempt to avoid cruel and unusual punishment. However, the Fourth Circuit disagreed, concluding that (1) plea bargains are outside the scope of the Roper holding, and (2) the nature of plea bargains support upholding their validity.

Plea Bargains Are Outside the Scope of Roper

The Fourth Circuit first concluded that the holding in Roper was never intended to apply to plea bargains. Although the court conceded that Roper was indeed a substantive rule that could be applied retroactively, it found that the scope of the rule was limited to the actual sentence delivered in a case. Because Dingle did not actually receive the death penalty, attempting to apply the holding in Roper to his own case was “compar[ing] apples and oranges.” The court further noted that the Supreme Court had never before allowed “a substantive rule to stretch beyond the proscribed sentence to reopen guilty pleas with a different sentence.”

Future Legal Developments Cannot Invalidate Plea Bargains

The Fourth Circuit next concluded that the holding in Roper could not invalidate Dingle’s guilty plea because plea bargains are “a bet on the future,” whereby defendants accept both the benefits of a lighter sentence and the risks of losing out on future favorable legal developments. A defendant’s remorse at missing out on those favorable legal developments is not enough to rescind an entire bargain.

The court found support for this contention in Brady v. United States, where the Supreme Court held that a defendant who entered into a plea agreement to avoid capital punishment could not later withdraw his plea agreement when subsequent legal developments made him ineligible for the death penalty. The Supreme Court suggested that defendants who are offered plea bargains must weigh the benefits and risks of such bargains, and the fact that they did not anticipate certain legal developments could not “impugn the truth or reliability of [their] plea.” Accordingly, the Fourth Circuit concluded that when Dingle entered his guilty plea, he accepted the trade-off between present benefits and future risks that is “emblematic” of plea bargains, and his inability to anticipate the favorable outcome in Roper could not invalidate his plea.

Conclusion

The Fourth Circuit concluded that (1) Roper, even applied retroactively, could not invalidate Dingle’s plea, and (2) precedent and policy argued against setting aside Dingle’s plea bargain. Accordingly, it affirmed the district court’s dismissal of Dingle’s petition and held that Roper could not be applied retroactively to invalidate Dingle’s guilty plea.

Tags:
23Oct

Fourth Circuit Affirms Conviction in Unlawful Receipt of Government Benefits Case

Categories: 4th Cir. Blog Criminal Cases
Comments Off on Fourth Circuit Affirms Conviction in Unlawful Receipt of Government Benefits Case

By: Kristina Wilson

On Friday, October 21, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Wharton. The Fourth Circuit affirmed the District Court’s conviction of the defendant for conspiracy, making a false statement, theft, and embezzlement, all in connection with her unlawful receipt of government benefits. On appeal, the defendant argued that the affidavit upon which the search warrant was based was materially false and thus violated her Fourth Amendment rights. The Fourth Circuit affirmed the District Court’s decision that there was no Fourth Amendment violation because the affidavit’s omitted facts were not material.

Facts and Procedural History

After the death of the defendant’s daughter in 2002, the defendant took her two granddaughters into her home. She began receiving Social Security survivors’ benefits on her granddaughters’ behalf. In 2012, the Government discovered that the defendant’s granddaughters had not lived with the defendant since 2009 and were not receiving their benefits. The Government then launched an investigation into the defendant’s use of the Social Security funds.

Following the investigation, a grand jury indicted the defendant on two counts of theft of government property in violation of 18 USC § 641 and 42 USC § 1381a(a)(3) on January 31, 2013. The grand jury issued a sealed superseding indictment on June 26, 2013, which was unsealed on July 10, 2013. The indictment charged both the defendant and her husband with conspiracy to embezzle, embezzlement, and making false statements. While the indictment remained sealed, on July 1, 2013, a special agent from the Social Security Administrator’s office executed an affidavit in which he asserted that the defendant and her husband lived together in the defendant’s home. The magistrate issued a search warrant based on the agent’s affidavit, and the Social Security Administrator’s office searched the defendant’s home, discovering a number of documents relevant to the criminal charges.

Prior to trial, the defendant moved to suppress all evidence uncovered in the search of her home. The District Court denied her motion to suppress for all evidence except that which was obtained from her second-floor bedroom. Ultimately, the District Court convicted the defendant and her husband for conspiracy to embezzle money in violation of 18 U.S.C. § 371, making false statements in violation of 42 U.S.C. § 1383a(a)(2), and embezzlement in violation of 18 USC § 641.

The Information Was Recklessly Omitted but Not Material

The defendant asserted that special agent’s affidavit was materially false in violation of the Fourth Amendment because it omitted the fact that she and her husband did not live together.

In the affidavit, the special agent asserted that the defendant and her husband lived together on the basis of interviews he conducted with the defendant, her husband, and their children. Both the defendant and her husband stated that they had been married continuously for 43 years and lived together in the defendant’s home. The special agent also discovered that the defendant’s husband’s electricity account provided power to the entire home, not just his basement living space. Additionally, the special agent discovered that Dish Network provided cable television to the entire home with the defendant and her husband both listed as authorized users.

The District Court held that the defendant and her husband did live separately in that the defendant’s husband only occupied the common areas of the home upon invitation and kept the door to his basement living area locked. However, the omission was not material and did not violate the Fourth Amendment.

The Omission Did Not Violate the Fourth Amendment

On appeal, the Fourth Circuit applied a de novo standard of review to the denial of the defendant’s motion to suppress.

According to the Fourth Circuit, the District Court properly addressed the defendant’s claim as a Franks v. Delaware question. Franks v. Delaware, 438 U.S. 154 (1978). Although a Franks analysis usually begins with the threshold question of whether a district court improperly denied an evidentiary hearing, the Fourth Circuit eschewed that preliminary question because the District Court granted the defendant an evidentiary hearing before denying the motion to suppress.

When a defendant asserts that an affiant has omitted material facts in the affidavit, the defendant must prove that the affiant intentionally or recklessly made a materially false statement or omitted material information.

While Franks requires proof of both intentionality and materiality, only materiality was at issue on appeal. An omission is material if it is necessary to the magistrate’s finding of probable cause to support the warrant. When evaluating materiality, a court inserts the omitted facts and then determines whether the corrected affidavit supports probable cause. If it does, there is no Franks violation.

In recent cases United States v. Lull, 824 F.3d 109 (4th Cir. 2016) and United States v. Tate, 524 F.3d 449 (4th Cir. 2008), the Fourth Circuit reversed the defendants’ convictions after concluding that the omitted information in question undermined the entire foundation of the affidavits. In Lull, an officer omitted facts that undermined the reliability of a confidential informant who supplied many of the facts in the affidavit. In Tate, an officer omitted the fact that much of the evidence supporting his affidavit originated from a questionable search of the defendant’s trash. The Fourth Circuit reasoned that if the trash search was illegal, that evidence would have to be suppressed. Without the trash search evidence, the officer’s warrant lacked probable cause.

In contrast, the fact that the defendant and her husband did not live together did not change the fair probability that evidence relating to the defendant’s crimes would be discovered in the common areas of the house. The magistrate was reasonable in concluding that the defendant and her husband lived together because they stated that they lived together, and they shared utilities and cable services, creating a reasonable inference that both individuals used those services throughout the home. Finally, the omitted fact did not call into question the inherent reliability or validity of the affidavit supporting the warrant, unlike in Lull and Tate.

Disposition

Therefore, the Fourth Circuit affirmed the District Court’s conviction of the plaintiff on all counts.

Tags:
12Apr

Fourth Circuit Vacates Federal Carjacking Conviction

Categories: 4th Cir. Blog Criminal Cases
Comments Off on Fourth Circuit Vacates Federal Carjacking Conviction

cops

By George Kennedy

On April 12, 2016, the Fourth Circuit issued its published opinion in the case of United States v. Bailey. The Fourth Circuit vacated a conviction for carjacking in violation of 18 U.S.C. § 2119, finding there was insufficient evidence to establish that Defendant had the specific intent necessary to sustain a federal carjacking conviction.

High-Speed Police Pursuit and Subsequent Carjacking 

On the night of April 17, 2014 in Durham, North Carolina, a police officer observed Defendant Kenneth Lee Bailey, Jr., operating a vehicle with its tag lights out. The officer decided to make a traffic stop, and accordingly maneuvered behind Defendant’s car and turned on the lights of her patrol car. At this point, Defendant sped up and darted down a one-way street in excess of 25 miles per hour above the posted speed limit. The police officer did not follow Defendant down the one-way street, out of a concern for the safety of other motorists, but instead followed Defendant from a parallel street.

Moments later, the officer came upon Defendant’s car which had crashed head-on into a stone wall. The police officer approached the scene of the accident and heard the cries of a child. While the officer went to check on the other passengers in Defendant’s car, Defendant fled the scene on foot to a nearby McDonald’s. After verifying that all passengers were unharmed, the officer continued her pursuit of Defendant. The officer reached the McDonald’s, where the officer discovered a man inside frantically screaming that his truck had been stolen.

At trial, an eyewitness testified that Defendant had stolen his truck in the parking lot of the McDonald’s. According to the testimony, Defendant approached the witness’s car and asked the witness for a ride, promising payment. When the witness refused, Defendant forced his way in, told the witness to “drive, drive, drive” and placed something “hard and cold” to the back of the witness’s neck. Fearing for his life, the witness leaped from the truck, and Defendant then went to the driver’s seat and drove witness’s truck away from the McDonald’s. After another high-speed pursuit, police officers finally caught up with Defendant and arrested him.

Trial at the District Court and Assignments of Error

At trial, the jury found Defendant guilty of carjacking in violation of 18 U.S.C. § 2119 and the district court sentenced Defendant to 106 months in prison. During the trial, however, no witness testified that they had seen Defendant with a weapon. Defendant appealed, arguing that there was insufficient evidence to support the jury’s verdict that he was guilty of carjacking as defined under 18 U.S.C. § 2119. Specifically, Defendant asserted that evidence was lacking to establish that Defendant possessed the specific intent required to sustain a carjacking conviction under the federal carjacking statute.

Fourth Circuit Vacates the Judgment on Sufficiency of Evidence Grounds

The Fourth Circuit held that the government failed to proffer sufficient evidence to sustain a federal carjacking conviction against Defendant, specifically in regards to the intent element. Under 18 U.S.C. § 2119, a person commits the crime of carjacking if he, “with the intent to cause death or serious bodily harm[,] takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so.” To satisfy the specific intent element of the crime, the government must show that the defendant “was conditionally prepared to” kill or seriously harm the driver if the driver “failed to relinquish the vehicle.”

To explain why Defendant lacked the requisite intent to sustain a federal carjacking conviction, the Fourth Circuit first looked to precedent. The Court cited to ten different cases in which federal carjacking convictions were upheld and found that in each case, the Defendant threatened his or her victim with a real weapon and/or physically assaulted his or her victim. Therefore, the Fourth Circuit found reason to distinguish the case at bar from precedent since the Defendant in this case did not physically assault his victims nor was there evidence that Defendant had ever used a real weapon to threaten his victims. Instead, there was only evidence that Defendant had placed something “hard and cold” to a victim’s neck. From this evidence, the Fourth Circuit concluded that while Defendant clearly meant to scare his victim there was no evidence to support a finding that Defendant was prepared to kill or seriously harm his victim, as required under 18 U.S.C. § 2119.

As additional support, the Fourth Circuit looked to the U.S. Supreme Court case of United States v. Holloway. There, the Supreme Court held that “an empty threat, or intimidating bluff,. . . standing on its own is not enough to satisfy § 2119’s specific intent element.” The Fourth Circuit found that the language from Holloway was controlling here. Since there was no evidence presented that Defendant was in possession of a gun or any other weapon during the carjacking, there was no evidence to suggest that Defendant made anything but an empty threat when he pressed the “hard and cold” object to his victim’s neck. The Fourth Circuit characterized Defendant’s threats as a mere “bluff,” providing insufficient support for a reasonable jury to conclude that Defendant possessed the intent to kill or seriously harm his victim, as required by the federal carjacking statute.

Vacated and Remanded

Accordingly, the Fourth Circuit vacated Defendant’s conviction and remanded the case to the district court for a judgment of acquittal.

 

Tags:
30Mar

Fourth Circuit Refuses to Prosecute Juvenile as an Adult

Categories: 4th Cir. Blog Criminal Cases
Comments Off on Fourth Circuit Refuses to Prosecute Juvenile as an Adult

By Malorie Letcavage

On March 30, 2016, the Fourth Circuit released its published opinion in the criminal case of U.S. v. Under Seal Defendant. The Defendant was a juvenile and federal law prohibits the public release of that juvenile’s name in association with the proceedings, so the juvenile was referred to as Defendant. Defendant was charged with murder in aid of racketeering in violation of 18 U.S.C. §1959(a)(1). This statute has a mandatory sentence of either death or life imprisonment. The government filed a motion in the district court to transfer the Defendant for prosecution as an adult for this offense. The district court denied the motion because the prosecution would be unconstitutional. The government appealed, and the Fourth Circuit affirmed, agreeing with the lower court that it would be against precedent and the constitution to sentence juvenile offenders to death or life imprisonment.

District Court Denied Motion for Transfer

The government’s motion for transfer was based on 18 U.S.C. § 5031, which removes juveniles from the ordinary criminal process. The act allows juveniles who are fifteen years old and above to be transferred from juvenile status if they have committed certain crimes and the transfer would be in the interest of justice. The court consider factors such as age, social background, nature of offense, and prior record in determining whether to transfer the juvenile.

In this case, Defendant was a few months shy of being eighteen when he participated in a gang-related murder. After the government’s motion to transfer the defendant, Defendant opposed the motion arguing that Supreme Court decisions held that juvenile offenders could not be sentenced to death or mandatory life imprisonment. Despite the interest of justice factors supporting a transfer, the district court agreed with Defendant that it would be unconstitutional to transfer and impose either of those mandatory sentences.

The court reviewed the recent court cases on point, stating that Roper v. Simmons held that juvenile offenders could not be sentenced to death, while Graham v. Florida prohibited sentencing juvenile offenders to life in prison without parole for non-homicide offenses. In Miller v. Alabama, the Court held that juveniles could not be sentenced to life without parole for all but the rarest cases where juveniles were irreparably corrupt. 18 U.S.C. §1959, which Defendant is charged under, only authorizes death or life imprisonment as punishments but the case law does not allow these punishments for a charge of murder in aid of racketeering.

Severability and Combination of Penalties Not Allowed 

The government posited the argument that the statute could be read to sever the problematic portions. The court explained that if legislation can function independently after an unconstitutional portion is severed, then it could be saved. The court found that the defining feature of a criminal statute is its punitive effect, and that if the unconstitutional punishments are removed from 18 U.S.C. §1959 there is no penalty provision. This lack of a penalty in a criminal statute invalidates it, and thus the statute cannot function independently.

The government also suggested that the statute could be restructured so that the punishment for kidnapping in aid of racketeering could be applied to murder in aid of racketeering, The Fourth Circuit soundly rejected this argument because to do so would be to overstep the judiciary’s role and trespass on the legislative role. The court refused to combine the penalties for two distinct criminal acts in the statute.

The Fourth Circuit also distinguished United States v. Booker by finding that nothing in that case allowed the judiciary to replace language in one provision with language not previously applied in a wholly separate provision. Booker looked to legislative intent in determining severability, but in this case there was no legislative intent available.

Government’s Arguments Rejected 

Furthermore, the court found that combining the penalties would violate due process. One of the notions of fairness stemming from the Constitution is the right to notice of what conduct is illegal and how severe the punishment for that conduct will be. The Fourth Circuit refused to look outside the boundaries of the statute for an alternative penalty since death and life imprisonment were not allowed because this would not give the Defendant fair notice of the punishment the crime would entail. The court held that it would not create new punishments outside of the authorized statutory punishments in the statute.

The court then distinguished other cases the government had relied on. It held that the cases cited did not give persuasive support because in this case the crime was committed after the Miller decision. It also held that other case law relied on only considered how to remedy a mandatory life sentence that was validly imposed at the time but later found to be unconstitutional, which was different than Defendant’s case. The court also rejected the government’s argument that its holding would cause the reversal of many convictions.

Fourth Circuit Affirms Denial of Motion to Transfer

The Fourth Circuit affirmed the district court’s decision to deny the government’s motion to transfer the Defendant to be tried as an adult. It held that because the charge had mandatory sentences that were prohibited when applied to juveniles, a transfer that would impose those sentences would be unconstitutional.

Tags:
2Mar

Fourth Circuit Reexamines the Mens Rea Requirement for Interstate Threats

Categories: 4th Cir. Blog Criminal Cases
Comments Off on Fourth Circuit Reexamines the Mens Rea Requirement for Interstate Threats

By Eric Benedict

On January 7, 2016, the Fourth Circuit released its published decision in the criminal case, United States v. White. In White, the Fourth Circuit was called on to review William White’s (“White”) conviction for transmitting threats and committing extortion in foreign commerce. Due to a development in Supreme Court precedent, the court reexamined the mens rea requirements for both a threat and extortion in the context of 18 U.S.C. § 875. The court ultimately reformulated its standard and found error in the lower court’s jury instruction, but concluded it was harmless error and affirmed the conviction and sentence.

White Sends Threatening Messages to His Ex-Wife

In 2010, White was convicted by a jury of making threatening phone calls and sending threatening letters. He was subsequently sentenced to a thirty-month sentence. During his incarceration, his marriage to his wife (“MW”) began to fall apart, and ultimately failed. MW entered into an agreement to pay alimony to White. White later disappeared during his supervised release, fleeing to Mexico. Shortly thereafter, MW stopped making alimony payments. By late May, White began contacting MW, making three extorting threats and one additional threat by email. White threatened MW with physical violence if she refused to meet her alimony requirements and enlisted the help of his acquaintance, Gnos, to help enforce his threats. Gnos eventually contacted the FBI and provided information about their communication. Authorities apprehended White in Mexico and he was returned to stand trial in the Western District of Virginia.

An Anonymous Jury Returns a Guilty Verdict

At trial the District Court Judge empanelled an anonymous jury which found White guilty of three counts transmitting a threat in interstate commerce with the intent to extort under  18 U.S.C. § 875(b) and one count of transmitting a threat under § 875(c). After sentencing enhancements for prior convictions and obstruction of justice—each of which was upheld on appeal—the judge sentenced White to a 92-month prison sentence.

White appealed his conviction on six separate grounds ranging from evidentiary concerns centered around Gnos’ involvement to the empanelling of the anonymous jury, each of which the Fourth Circuit quickly disposed of. However, the court did spend significant time explaining its decision on two of the issues on appeal, both concerning the mens rea requirements of § 875.

The Fourth Circuit Reexamines § 875(c) Mens Rea in the Wake of the Elonis Decision

Judge Thacker explained that the Fourth Circuit had previously understood conduct to be unlawful under § 875(c) where, “(1) the defendant knowingly communicates a  statement in interstate commerce that (2) contains a ‘true threat’ that is not protected by the First Amendment.” Notably, this previous standard did not contain a requirement that the speaker intended the recipient to be threatened. The Fourth Circuit adopted this position because, “neither the statute nor the Constitution requires the Government to prove that a Defendant subjectively intended the recipient of the communication to understand it as threatening.”

In 2015, the United States Supreme Court announced its decision in Elonis v. United States. In Elonis, the Court explained that the omission of criminal intent from the statute did not mean there was no mens rea requirement. Instead the Supreme Court instructed lower courts to “read into the statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.” In the § 875(c) context, the Court indicated that a defendant must have “the purpose of issuing a threat, or [have] knowledge that the communication will be viewed as a threat.”

The Fourth Circuit took the opportunity in White to incorporate the Elonis decision into its understanding of § 875(c) to distill its test for guilt: “(1) that the defendant knowingly transmitted a communication in interstate or foreign commerce; (2) that the defendant subjectively intended the communication as a threat; and (3) that the content of the communication contained a ‘true threat’ to kidnap or injure.”

Although the Court reformulated its standard and thus, found error in the lower court’s jury instruction, Judge Thacker found the error to be harmless, because there was no evidence on the record to persuade a reasonable jury that White meant to do anything other than to threaten MW.

White’s Right to Alimony Does Not Justify Bodily Threats

The Court next looked to White’s three-count conviction under § 875(b). White objected to his conviction on the ground that he lacked the mens rea for the charge and that he had a right to the money for which he allegedly extorted MW. The Fourth Circuit quickly disposed of White’s arguments with respect to mens rea. Although the court acknowledged the “intent to extort,” the court concluded that “one cannot have the intent to scare someone into relinquishing property or something of value by communicating a wrongful threat to kidnap or injure without also intending the communication to be threatening.”

White also alleged that, because he had a claim of right to the alimony payments, he could not have extorted MW. Differentiating White’s threats of bodily injury from “legitimate legal threats” or even threats relating to a party’s reputation stemming from true publications, the court noted that “a defendant may not threaten to injure or kidnap a person to collect a debt, even one legitimately due and owing.” Therefore, the court did not have to decide if White did have a legal claim to the funds.

The Fourth Circuit Unanimously Affirms the Conviction and Sentence

After disposing of the defendant’s two mens rea claims, the Fourth Circuit addressed the Defendant’s sentencing and jury claims. The court applied existing law to conclude that none of the objections formed a reversible ground for appeal on these facts. Therefore, the court concluded that it must affirm the conviction and sentence.

Tags:
1Mar

In Death Penalty Case, Fourth Circuit Affirms Denial of Defendant’s Petition for a Writ of Habeas Corpus

Categories: 4th Cir. Blog Criminal Cases
Comments Off on In Death Penalty Case, Fourth Circuit Affirms Denial of Defendant’s Petition for a Writ of Habeas Corpus

Prisoner and guard

By George Kennedy

On November 25, 2015, the Fourth Circuit issued its published opinion in the criminal case of Gray v. Zook. The Fourth Circuit affirmed the order of the district court, which denied Defendant’s petition for a writ of habeas corpus.

Defendant’s Crimes and Death Sentence

Defendant Ricky Jovan Gray confessed to murdering Bryan and Kathryn Harvey and their two young daughters in the course of a home burglary. For these crimes, Defendant was tried in Virginia state court. At trial, the state presented evidence that Defendant had also murdered his wife as well as several others close in time to the murders of the Harveys. As a defense, Defendant offered evidence of his traumatic childhood experiences, including repeated sexual abuse, as well as his consistent drug use. Defendant attempted to show that there was a connection between his childhood trauma and drug use and his violent behavior.

The jury issued verdicts of life imprisonment on three murder counts, and verdicts of death for the murders of the Harvey daughters. On direct appeal, the Supreme Court of Virginia affirmed the convictions and death sentences.

Petitions for Habeas Relief

Following his conviction, Defendant sought state habeas relief in the Supreme Court of Virginia. Defendant argued that he had received inadequate legal representation. Specifically, Defendant claimed that his attorneys had failed to investigate the circumstances surrounding his confession and that his attorneys had not sufficiently represented Defendant’s defense that his use of PCP during the murders had clouded his memory. The Supreme Court of Virginia dismissed Gray’s habeas petition with the exception of one claim, not relevant to Defendant’s federal claims.

Defendant then filed a federal habeas petition in federal district court, alleging that the Supreme Court of Virginia’s dismissal of his habeas petition was based on an unreasonable determination of the facts under the Anti Terrorism and Effective Death Penalty Act (“AEDPA”) § 2254(d)(2). The essence of this claim was that the Supreme Court of Virginia failed to adequately consider all of the evidence presented at trial. The district court also denied Defendant’s habeas petition in full. In addition, the district court certified two questions to the Fourth Circuit. The second question was whether the recent U.S. Supreme Court decision of Martinez v. Ryan mandated the appointment of independent counsel to investigate possible Martinez claims present in Defendant’s case. To this question, the Fourth Circuit answered in the affirmative. Accordingly, Defendant was appointed new counsel, and was allowed to present a new claim for habeas relief. Defendant’s claim was that his counsel failed to present evidence of his voluntary intoxication at the time of the crimes. Yet again, the district court rejected Defendant’s claim for relief. The first certified question was resolved by the Fourth Circuit in this appeal.

Issues on Appeal

The first issue on appeal at the Fourth Circuit was whether the Supreme Court of Virginia’s dismissal of Defendant’s habeas petition that he failed to receive effective legal counsel was “based on an unreasonable determination of the facts under AEDPA § 2254(d)(2).” The AEDPA allows a federal district court to review claims decided on the merits by state courts in death penalty cases when the state court adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Defendant’s argument was that the Supreme Court of Virginia erred by failing to resolve disputed issues of fact without an evidentiary hearing, and that its determinations of factual disputes were unreasonable. The Fourth Circuit disagreed, and held that the Supreme Court of Virginia was not required to hold an evidentiary hearing and held that its determination of the facts was not objectively unreasonable.

As the Fourth Circuit explained, the AEDPA does not require a state court to conduct an evidentiary hearing for all factual disputes. Here, the Fourth Circuit held that an evidentiary hearing was not required. The factual dispute at issue was whether Defendant had received adequate representation. The Fourth Circuit found ample support in the record that the Supreme Court of Virginia had considered this dispute sufficiently, and that there was no reason why further inquiry in the form of an evidentiary hearing was required. Furthermore, the Fourth Circuit held that the Supreme Court of Virginia’s determination of the facts was not objectively unreasonable under the AEDPA. The Fourth Circuit disagreed with Defendant on all points. As the Fourth Circuit held, Defendant’s arguments did not call into question any of the Supreme Court of Virginia’s factual findings since they were based on Defendant’s own “conclusory allegations” contradicted by evidence on the record.

The second issue on appeal was whether Defendant may belatedly raise an ineffective assistance at trial claim under the rule recently announced in Martinez. On this issue, also, the Fourth Circuit disagreed with Defendant and affirmed the decision of the trial court. Martinez “permits a petitioner, under certain circumstances, to excuse a procedural defect and bring a claim in federal court that was not raised in state court.” Yet the Fourth Circuit held that Defendant’s ineffective assistance at trial claim was effectively raised in Virginia state court. Therefore, the Fourth Circuit held that Defendant was not entitled to bring his ineffective assistance at trial claim anew in federal court. Accordingly, the Fourth Circuit found no basis to reverse the district court nor revisit the decision of the Supreme Court of Virginia.

Affirmed

The Fourth Circuit affirmed the district court’s dismissal of Defendant’s habeas petition.

Dissent

Judge Davis wrote a separate opinion in which he concurred in part and dissented in part. Judge Davis agreed that Defendant’s Martinez claim relating to ineffective representation at trial was without merit. However, Judge Davis disagreed with the majority as to the AEDPA claim, arguing instead that the Supreme Court of Virginia made an unreasonable determination of the facts.

 

 

Tags:
26Feb

Fourth Circuit Vacates District Court’s Traffic Stop Decision

Categories: 4th Cir. Blog Criminal Cases
Comments Off on Fourth Circuit Vacates District Court’s Traffic Stop Decision

By Cate Berenato

On December 14, 2015, in the published case United States v. Williams, the Fourth Circuit overturned the United States District Court for the Middle District of North Carolina’s decision not to suppress evidence police obtained from a search of a car. The Fourth Circuit stated that the Government did not prove that the police had reasonable suspicion to search the defendant’s car.

The issue in this case was whether, based on a totality of circumstance, the police properly delayed defendant to allow for a police dog to search defendant’s car.

The Police Encounter with Mr. Williams

On February 13, 2012, police stopped Mr. Charles Williams, Jr. on Interstate 85 for going 80 miles per hour in a 70 mile per hour zone. Two policemen were involved in the stop. When Mr. Williams refused one police officer’s request to search his car, the officer had Mr. Williams wait for over two minutes while the other police officer brought over his dog to search the car. The dog detected drugs, and the police found cocaine in the car’s trunk. The district court considered four factors to determine that the stop was proper: (1) the defendant was driving in a rental car; (2) the defendant was traveling on a known drug corridor around midnight; (3) Williams’ alleged travel plans were inconsistent with the due date of his rental car; (4) Williams did not provide a permanent home address in New York, despite stating he lived there.

Traffic Stops

Courts consider the constitutionality of stops through a two-pronged test. First, courts ask whether the officer’s reason for the stop was legitimate. Second, the court considers whether the officer’s actions during the seizure were reasonably related to the basis for the traffic stop. Under the second prong, an officer’s authority to detain ends when the tasks associated with the stops are complete. Because a traffic stop is a seizure under the Fourth Amendment, an officer must have a reasonable, articulable suspicion that criminal activity is afoot if he or she executes an investigatory detention. The reasonable suspicion depends on the totality of the circumstances. This can also turn on the judgment of experienced law enforcement officers.

The Fourth Circuit Was Not Persuaded by the District Court’s Factors

First, the parties do not dispute that the officers met the first prong. In other words, the stop was legitimate because Mr. Williams was speeding. The officers did not meet the second prong because the first officer had already accomplished the purpose of the stop before the second officer allowed his dog sniff Mr. Williams’ car.

Additionally, the factors that the district court considered did not lead to reasonable suspicion. First, the officers did not explain any connection between rental cars and criminal activity. Second, the majority of drivers who drive on the highways that may be drug corridors are innocent. Likewise, neither officer asserted that drug traffickers travel on interstates late at night more frequently than innocent drivers. Third, many innocent drivers extend their rental car agreements in the midst of their trips. Fourth, and finally, neither officer asked Mr. Williams for his permanent address, and neither explained how using a post office box address or living in New York raised suspicions of criminal activities.

Thus, the Fourth Circuit vacated and remanded the district court’s decision.

Tags:
22Feb

Thirty-Three Month Sentence for Sex Offender Who Failed to Register Found to be Procedurally Unreasonable by Fourth Circuit

Categories: 4th Cir. Blog Criminal Cases
Comments Off on Thirty-Three Month Sentence for Sex Offender Who Failed to Register Found to be Procedurally Unreasonable by Fourth Circuit

gavel-judge-court-410-l

By Daniel Stratton

On February 19, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Berry, vacating a sex offender’s thirty-three month sentence for failing to register on the grounds that it was procedurally unreasonable. The Fourth Circuit found that the defendant, Brian Berry, had been incorrectly categorized as a tier III offender under the U.S. Sentencing Guidelines and remanded the case to the U.S. District Court for the Eastern District of North Carolina for resentencing under the appropriate standard.

Berry is Released From Prison, Fails to Register as a Sex Offender

In 2002, Berry pleaded guilty in New Jersey to endangering the welfare of a child in violation of New Jersey state law, after engaging in inappropriate sexual conduct with a five-year-old victim. Upon his release from prison, Berry was required to register under the federal Sex Offender Registration and Notification Act (SORNA).

After initially registering, law enforcement discovered in 2013 that Berry no longer lived at his listed address in New Brunswick, New Jersey. SORNA requires a sex offender to update their registration upon every change of residence. Subsequently, New Jersey issued a warrant for Berry’s arrest for violating parole. He was found in North Carolina, where he pleaded guilty to one count of failing to register as a sex offender in violation of 18 U.S.C. § 2250.

SORNA classifies sex offenders into three tiers depending on the nature of the underlying sex offense.  More serious sex offenses are classified under the second and third tiers, while tier I is a catch-all for all others. The U.S. Sentencing Guidelines assign a base sentence depending on the tier. Under SORNA’s definition, an offender who engages in abusive sexual contact against a minor who is under thirteen years old falls under tier III. The district court determined that Berry was a tier III sex offender under SORNA and used that determination to calculate a sentencing range of thirty-three to forty-one months. He was ultimately sentenced to thirty-three months in prison, followed by five years of probation. Berry appealed his sentence, arguing that the district court classified him in the incorrect tier.

How SORNA’s Tier Classification System Works

To determine a sex offender’s tier classification, a court will compare the underlying sex offense with those listed in each of the tiers’ definitions. Generally, courts have adopted two frameworks for analyzing which tier an offender should be placed in. The first is the categorical approach, which compares the elements of the prior offense with the elements of the “generic” offense of that tier as defined in SORNA. If the elements of the prior offense “are the same as, or narrower than” the elements of the generic offense, then the offender is classified in that tier. If the statute encompasses broader conduct, which could fall outside of the offense enumerated in the federal statute, then the prior offense is not a match. Some jurisdictions also apply a modified categorical approach, which allows the categorical approach to be used where the prior conviction is for violating a “divisible statute.” A divisible statute is one that sets out one or more elements in the alternative. This approach allows courts to consult a limited number of court documents to determine which alternative formed the basis of the prior conviction.

The second approach is known as the circumstance-specific approach. It focuses on the circumstances underlying the prior offense. Under that approach, the court does not focus on the elements of the prior offense, and instead looks at whether it involved conduct or circumstances required by SORNA.

The Fourth Circuit Adopts the Tenth Circuit’s Hybrid Approach to Applying Tier III When Involving Minors

Noting that the Tenth Circuit recently concluded that “Congress intended courts to look to the actual age of the defendant’s victim, but to otherwise employ a [categorical] approach,” the Fourth Circuit adopted a similar view. The Fourth Circuit explained that when a statute makes reference to a generic offense, it is evidence that Congress intended a categorical approach to applying the statute. It also noted that when a statute refers to specific conduct or circumstances, it was evidence of Congress’s intent to apply a circumstance-specific approach.

The Fourth Circuit explained that SORNA’s use of generic offenses in its text indicated that a categorical approach should be used when analyzing a prior offense.  However, the element specifying a victim be under the age of thirteen indicated that the court should consider the specific circumstances of a victim’s age, rather than mechanically apply the categorical approach. Based on this, the Fourth Circuit concluded that it should apply a categorical approach to sex offender tier classification, with a limited-purpose circumstance-specific comparison for determining the victim’s age.

The Fourth Circuit Applies the Categorical Approach to Berry; Holds that He Was Improperly Classified

Applying the categorical approach to Berry’s case, the court looked at the New Jersey statute under which Berry was convicted.  The New Jersey Supreme Court interpreted the statute as to not require actual or attempted physical contact in order to be convicted of child endangerment. As a result, the statute could encompass conduct much broader than what fell within the generic elements of tier III. The Fourth Circuit found this to mean that the elements of the underlying statute were not “comparable to or more severe than” the elements of the generic tier III offense. This, the court concluded, meant that Berry could not be properly classified as a tier III offender. As a result, Berry’s sentence was improperly calculated using a higher base offense level, making Berry’s sentence procedurally unreasonable.

Berry’s Case is Sent Back to the District Court for Resentencing

After finding Berry’s sentence procedurally unreasonable, the court vacated the sentence and remanded the case back to district court. On remand, the Fourth Circuit instructed the district court to determine the appropriate tier level, calculate the new sentencing range, and impose a new sentence.

Tags:
19Feb

Fourth Circuit Vacates Firearm Conviction in Light of United States v. Simmons

Categories: 4th Cir. Blog Criminal Cases
Comments Off on Fourth Circuit Vacates Firearm Conviction in Light of United States v. Simmons

beretta-firearm-weapon-459313-h

By Paige Topper

On February 19, 2016, in the criminal case of United States v. Adams, a published opinion, the Fourth Circuit vacated the conviction of defendant, Richard Adams, for being a felon in possession of a firearm because, at the time of the offense, Adams was not a convicted felon.

Adams’ Plea Agreement Relating to a Series of Armed Robberies 

A grand jury indicted Adams for committing a series of armed robberies of convenience stores. Adams entered into a written plea agreement in which he pled guilty to three of eight criminal counts: (1) robbery, (2) using and carrying a firearm during a crime of violence, and (3) being a felon in possession of a firearm. By entering into the plea agreement, Adams waived his right to challenge his conviction or sentence. Adams’ total sentence for the three crimes was 240 months imprisonment.

On August 28, 2012, Adams filed a motion pursuant to 28 U.S.C. § 2255 to vacate his conviction for being a felon in possession of a firearm (§ 922(g)). Adams argued that his prior convictions were not felonies after the decision in United States v. Simmons. In Simmons the Fourth Circuit held that for an offense to be a prior felony a defendant must have actually faced the possibility of more than one year in prison. Therefore, Adams argued he was innocent of being a felon in possession of a firearm (his prior charges were not discussed in the opinion). The district court determined that Adams’ claim was barred by the waiver in his plea agreement. The Fourth Circuit granted Adams a certificate of appealability to determine whether Adams’ waiver barred consideration of his claim that Simmons rendered him innocent of being a felon in possession of a firearm.

Adams Was Not Barred from Bringing Simmons Claim

In order to determine whether Adams was innocent, the Fourth Circuit first examined whether Adams’ Simmons-based claim was within the scope of the valid waiver of his plea agreement. The Fourth Circuit had previously reasoned in case law that it would refuse to enforce an otherwise valid waiver if doing so would result in a “miscarriage of justice.” Specifically, the Fourth Circuit found that a proper showing of actual innocence would constitute a miscarriage of justice should a plea agreement waiver be upheld in light of such innocence. Thus, if the Court determined that Adams made a cognizable claim of actual innocence then his motion falls outside the scope of his waiver.

Adams Properly Alleged his Actual Innocence

The Fourth Circuit then concluded that Adams made a valid claim of actual innocence based on prior case law. The Court turned to Miller v. United States to determine that for defendants convicted of being a felon in possession of a firearm, where the predicate convictions were North Carolina felony offenses for which the defendant could not have received sentences of more than one year in prison, Simmons made clear that such convictions do not qualify as predicate felonies for federal law and that the defendants are thus innocent of the offense.

The Court found the government’s argument that Adams only showed legal innocence as opposed to factual innocence to have no merit. Specifically, the Fourth Circuit determined that Adams did show factual innocence because, by showing that he was not a convicted felon at the time at issue, Adams made it impossible for the government to prove one of the required elements of the crime for possession of a firearm by a convicted felon: that the defendant was a convicted felon at the time of the offense.

Furthermore, the Fourth Circuit found the government’s second argument that Adams had to show that he was also actually innocent of the conduct alleged in the five dismissed counts unpersuasive. The Court explained that a defendant making a claim of actual innocence after a plea deal has to show only that he is factually innocent of the underlying criminal conduct. Thus, Adams did have to prove actual innocence to the five dismissed charges because they related to different criminal conduct.

Fourth Circuit Vacated Conviction

The Fourth Circuit concluded that Adams made the requisite showing of actual innocence for the crime of being a felon in possession of a firearm. Subsequently, the Court vacated Adams’ § 922(g) conviction.

Tags:
17Feb

Fourth Circuit Allows Sentence Reduction

Categories: 4th Cir. Blog Criminal Cases
Comments Off on Fourth Circuit Allows Sentence Reduction

jail photo for blog

By Malorie Letcavage

On December 14, 2015, the Fourth Circuit released its published opinion in United States v. Lance Williams. The Court vacated the district court’s denial of Lance Williams’ motion for a reduced sentence under 18 U.S.C. §3582(c)(2). The Court’s opinion made it clear that when there is an amendment to the U.S. Sentencing Guidelines (“Guidelines”) that explicitly allows for retroactive effect, this overcomes case law precedent prior to the amendment.

District Court Denies a Sentence Reduction

In 2008, Williams plead guilty to distributing cocaine. The United States Attorney filed a motion for an enhanced penalty under 21 U.S.C. § 841(b)(1)(A) due to Williams’s prior drug conviction. Williams’ sentence was calculated but the enhanced penalty triggered the mandatory minimum sentence of 240 months. Before the sentencing hearing, the prosecutors filed a downward departure for the sentence based on William’s substantial assistance to the authorities, which reduced the sentence to 180 months.

Three years after the conviction and sentencing, Williams filed a pro se motion for a reduction under 18 U.S.C. §3582(c)(2) because of Guidelines Amendments 750 and 782, which were affected by Amendment 780. The district court, relying on United States v. Hood (“Hood“), denied this motion because Williams did not meet the criteria of §3582(c)(2) due to his sentence not being based on the Guidelines range, but instead being based on a statutory minimum and a reduction for substantial assistance.

Fourth Circuit Describes the Legal Framework

The Guidelines are the result of a commission created by Congress to help federal courts decide sentences. The commission is allowed to amend the Guidelines, and must clearly state if the amendments are to have retroactive effect. A sentence reduction is authorized only when an amendment has the effect of reducing the applicable guideline range. In order to determine if an amendment is applicable the Court uses a two-step test. First, the sentencing court must determine the prisoner’s eligibility for a detention modification, and then if he is eligible, the court can then determine the extent of the reduction.

The Fourth Circuit has recognized the power of the amendments to the Guidelines to override case law precedent because these amendments resolve disagreements among the courts of appeals. Thus, precedent in sentence reduction cases yields if it conflicts with the Guidelines amendments.

The Fourth Circuit’s decision to deny a sentence reduction in Hood was premised on the fact that the amendment Hood relied on had no impact on the statutory mandate or substantial assistance departure, which his sentence was based upon. Guidelines Amendment 780 was promulgated after Hood, and served to clarify that there is relief for prisoners who had been sentenced below statutory minimums as a result of substantial assistance motions.

Amendment 780 Precludes United States v. Hood

The Fourth Circuit found that Amendment 780 explicitly makes Williams eligible for a sentence reduction under 18 U.S.C. §3582(c)(2) because it has the practical effect of changing the law. It held that the logic in Hood does not apply.

The Court also held that the amendment helps to eliminate disparity because otherwise a cooperating defendant with a guideline range above the statutory minimum would get relief while a cooperating defendant, like Williams, whose guidelines range was below the statutory minimum would be denied relief. The Court’s ruling thus also helps the policy of rewarding cooperation with authorities.

Williams is Eligible for a Sentence Reduction

Amendment 780 was in effect before the district court ruled on Williams’ motion for sentence reduction. The district court was therefore required to apply Amendment 780 and substitute the retroactive portion. If the Guidelines calculation then reveals a lower range, the prisoner is eligible for a sentence reduction.

Amendment 780 would reduce Williams’ offense level from twenty-seven to twenty-one and thus lower his guideline range to seventy-seven to ninety-six months. Since this range is lower than the original, Williams is eligible for sentence reduction under 18 U.S.C. §3582(c)(2).

Conclusion

The Fourth Circuit reversed the lower court’s holding and remanded the case. It also made clear that while Williams is eligible for a reduction, the ultimate decision on amount of reduction is up to the sentencing court. Judge Traxler dissented because he believed only Congress, not the Guidelines, could change the sentencing departures. He also found Hood to be good law, and not completely in contradiction with Amendment 780. For these reasons, Judge Traxler did not think Williams was eligible for a sentence reduction.

Tags:
16Feb

The Fourth Circuit Cites Contract Law to Dismiss Waived Sentencing Appeal

Categories: 4th Cir. Blog
Comments Off on The Fourth Circuit Cites Contract Law to Dismiss Waived Sentencing Appeal

By Eric Benedict

On February 16, 2016, the Fourth Circuit Court of Appeals issued its published opinion in the criminal case, United States v. McLaughlin. Judge Wilkinson, writing for a unanimous panel, dismissed McLaughlin’s appeal. The panel used a published opinion to clarify which types of appeals fall within the perimeters of a plea bargain which waives the right to appeal a sentencing guideline range established at sentencing.

McLaughlin Accepts Plea Agreement for ATM Fraud

In 2014, Tineka McLaughlin pleaded guilty to violating 18 U.S.C. § 1344 by her participation in an ATM fraud scheme in North Carolina. McLaughlin entered into an agreement with prosecutors which, in part, required McLaughlin:

To waive…all rights…to appeal the conviction and whatever sentence is imposed on any ground, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing…”

[emphasis added]

At her plea hearing, McLaughlin verbally indicated that she understood that she retained only the right to appeal based on an upward departure of the sentencing. To calculate McLaughlin’s sentence, the judge used the “four-level role-in-the-offense enhancement” found in the United States Sentencing Guidelines at U.S.S.G. § 3B1.1(a) (the “role increase”). The provision provides for a four-level increase in the offense level “[i]f the defendant was an organizer or leader of a  criminal activity that involved five or more participants or was otherwise extensive….” The role increase resulted in a guideline imprisonment of fifteen to twenty-one months. The District Court then cited U.S.S.G. § 4A1.3(a)(1) to impose an upward departure sentence of twenty-seven months to reflect there seriousness of the defendant’s criminal history (the “recidivism departure”).

McLaughlin Appeals “Role-In-Offense” Sentence Increase

On appeal from the Eastern District of North Carolina, McLaughlin criticized the use of the role increase in calculating her sentence.  Citing her plea agreement, the United States moved to dismiss, arguing that the calculation of the role increase was a part of the “establishment of her advisory Guideline range” and thus, was waived in her plea agreement. McLaughlin in turn argued that since she did in fact receive an upward departure, she was free to appeal any part of her sentence. Counsel for McLaughlin did not appeal the recidivism departure.

The Fourth Circuit Concludes that McLaughlin Waived Appeals Grounds

Judge Wilkinson turned first to the text of the waiver to conclude that the grounds for appeal had been waived.  The court found an examination of the waiver provision in its entirety particularly instructive against McLaughlin’s claim of error.  Reasoning that the role increase is, by definition part of the establishment of the “advisory guideline,” the court concluded that appeals like McLaughlin are exactly what the waiver seeks to avoid. Notably, the Fourth Circuit explained that because the interpretation of plea bargains is rooted in contract law, and because contract terms must be interpreted in light of the agreement in its entirety, the waiver provision must include an appeal based on the role increase, since otherwise, other portions of the waiver would be rendered “mere surplusage.”

Judge Wilkinson next addressed McLaughlin’s contention that the agreement was ambiguous and should be construed in her favor to allow the appeal. However, the court found the meaning of the agreement clear in its prohibition of such an appeal, and the allowance of an appeal based on an upward departure.

Finally, the panel questioned the appeal’s propriety in light of the existence of  the available grounds, the recidivism departure. Although not mentioned by the court in this case, had McLaughlin appealed, the Fourth Circuit has previously explained that it would have “consider[ed] whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range.” United States v. Harnandez-Villanueva.  However, as the court noted, this issue was not before the court.

The Fourth Circuit Determines that the Appeal as Waived and Dismisses

The court applied principles of contract interpretation to the interpretation of the plea agreement to find that it prohibited the appeal based on the role increase. The Fourth Circuit therefore found that McLaughlin waived her right to appeal the role increase and dismissed the appeal.

Tags: