Wake Forest Law Review
6Apr

Defendant Stuck With Guilty Plea After Ineffective Assistance of Counsel Claim Fails on Appeal

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By Marcus Fields

Today, in U.S. v. Solares, an unpublished opinion, the Fourth Circuit affirmed the District Court for the Western District of North Carolina’s judgment against Adrian Solares imposing a 93-month sentence after Solares pled guilty to multiple firearm offenses. In doing so, the Fourth Circuit denied Solares’s ineffective assistance of counsel claim and found that the district court did not abuse its discretion when it denied Solares’s petition to withdraw his guilty plea.

 Ineffective Assistance of Counsel Claim Not Supported by the Record

Solares claims that his attorney failed to provide effective assistance when “counsel allegedly advised Solares that he could not plead guilty to some of the counts against him and proceed to trial on the remaining counts.” The Fourth Circuit rejected this claim. It began by stating that a defendant may only raise a claim of ineffective assistance of counsel for the first time on appeal if “it conclusively appears from the record that counsel did not provide effective assistance.” The defendant must show that: “(1) counsel’s performance was objectively unreasonable; and (2) defendant was prejudiced by counsel’s performance.

To satisfy the prejudice prong in the context of a guilty plea, a defendant must demonstrate “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” A defendant must make such a demonstration by convincing “the court that such a decision would have been rational under the circumstances.” The Fourth Circuit determined that the record below did not support such an assertion and thus rejected Solares’s ineffective assistance of counsel claim.

The Magistrate Judge did not Abuse Discretion By Refusing to Allow Solares to Withdraw Plea

The Fourth Circuit held that Solares had waived his right of appellate review because he failed to appeal the magistrate judge’s ruling to the district court. The Fourth Circuit cited language in another case stating that a defendant could not “ignore his right to file objections with the district court without imperiling his right to raise the objections in the circuit court of appeals.” Furthermore, the Fourth Circuit found that the magistrate judge did not err in deciding to deny Solares’s motion to withdraw.

Because the Fourth Circuit rejected both of the claims raised by Solares on appeal, it affirmed the district court’s judgment.

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3Apr

The Fourth Circuit Affirmed the Convictions of Two Somali Pirates

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By David Darr

Today, in the criminal case of United States v. Beyle, a published opinion, the Fourth Circuit affirmed the convictions of two Somali pirates for various charges relating to piracy, including the murder of four Americans off the coast of Somalia.

Defendants Contended the Court Lacked Jurisdiction and Violated Constitutional Rights

On appeal, Abukar Osman Beyle, defendant, contended that the court lacked jurisdiction over the charges related to murder and firearm use because the murder occurred in Somalia’s territorial waters, not on the high seas. Shani Nurani Shiekh Abrar, the other defendant, claimed that his Fifth Amendment right to due process and his Sixth Amendment right to present witnesses material to his defense were violated because he was unable to access certain witnesses important to his duress defense.

The Hostage Situation Resulting in the Deaths of Four Americans and Subsequent Proceedings

In February of 2011, a group of Somali pirates, which defendants were a part of, armed with automatic weapons and a rocket-propelled grenade launcher captured a Yemeni fishing boat. Both Beyle and Abrar were listed on the ledger for dividing the spoils among the pirates. The pirates attacked a ship with four Americans aboard that was part of an international yacht rally. Abrar was the first to board the American ship, and once on board he subdued the Americans and cut the communication lines. When the pirates gained control of the ship, it was approximately 950 miles off of the Somali coast. The pirates let four Yemeni fishermen they had captured with the Yemeni boat leave on the Yemeni boat, while the pirates stayed on the American boat. The pirates took the Americans hostage and tried to secure a ransom using their connections on land in Somalia. The U.S. Navy was alerted to this and moved to intercept the vessel before it could reach Somali waters. The Navy engaged with the pirates for several days in an attempt to get them to surrender, but the pirates refused, threatening to kill the hostages. The pirates started to fire guns and rockets at a Navy vessel that was attempting to block the boat from reaching Somali waters. The Navy did not return fire. A group of pirates, including Beyle and Abrar, opened fire on the four Americans, killing them all. At this time, the vessel was between thirty and forty nautical miles off the coast of Somalia. Navy SEALs then boarded the vessel, and the pirates surrendered after four pirates were killed. The FBI questioned the pirates and Abrar claimed that he was kidnapped and forced to be the pirates’ mechanic, with his role later changing to guard. Abrar claimed that the only reason he did not leave with the Yemeni fishermen was because he was afraid of being arrested in Yemen. Abrar admitted to pointing a gun at the hostages, but denied taking part in the shooting.

All of the pirates were taken to the United States and charged with a variety of crimes related to the piracy and hostage taking, including murder. All but three of the pirates, pled guilty and were sentenced to life in prison. Beyle, Abrar, and another pirate decided to take the case to trial. Beyle filed a motion to dismiss any counts relating to the murders because he claimed the murders took place in Somali territorial waters, outside of U.S. jurisdiction. Abrar filed a motion to dismiss the case against him because he could not reach witnesses, including the Yemeni fishermen, that would provide evidence that he acted under duress, which could act as a defense to all the charges except murder. The district court denied both motions. The U.S. sought the death penalty for all three defendants at trial. The trial lasted over a month, and ultimately the jury voted to convict all three defendants to life in prison. The jury heard instructions on Abrar’s duress defense, but decided that duress was not applicable. Beyle and Abrar appealed.

Definition of “High Seas”

The Constitution gives the federal government the power to punish piracy and felonies committed on the high seas. In statute, Congress had defined the high seas as including any waters outside the jurisdiction of any nation. The United Nations Convention on the Law of the Sea (UNCLOS), which the United States has recognized but not ratified and Somalia has ratified, recognizes that a nation’s sovereignty covers only territorial sea, which is twelve nautical miles off the coast. However, UNCLOS also recognizes exclusive economic zones (EEZ), which UNCLOS treats as quasi-territorial for economic rights. These EEZs extend to 200 miles off the coast of a nation. UNCLOS does not define waters as high seas until outside of these EEZs.

High Seas Include EEZs

Beyle argued that because UNCLOS does not consider the high seas to start until 200 miles of the coast of nation, the court below did not have jurisdiction because the murders occurred within forty miles of the Somali coast. The Fourth Circuit disagreed because EEZs allocated economic rights, not other rights. The actual authority to punish criminal violations only extended to twelve nautical miles off the coast of Somalia according to UNCLOS. Therefore, EEZs were outside of a nation’s sovereignty, making them “high seas” according to U.S. law, regardless of what UNCLOS defines as high seas. In the alternative, Beyle argued that Somalia had passed a resolution in 1972 extending its jurisdiction to 200 miles from the coast. The Fourth Circuit was unsure of the validity of this resolution, and found that Somalia’s subsequent adoption of UNCLOS superseded any such resolution. Because the murder occurred outside of twelve nautical miles off of the Somali coast, the Fourth Circuit found that the murders occurred on the high seas and were thus subject to U.S. jurisdiction.

Fifth and Sixth Amendment Protections

The Fifth Amendment provides due process protections when the government seeks to deprive someone of life, liberty, or property. The Sixth Amendment grants the right to a process to obtain witnesses for criminal defendants. The Sixth Amendment is violated if a defendant is arbitrarily deprived of relevant and material testimony that is vital to his defense. The Fifth and Sixth Amendments are closely related and the right to call witnesses to defend oneself is essential to due process.

The Fifth and Sixth Amendments Were Not Violated for Abrar

Abrar claimed that his Fifth and Sixth Amendment rights were violated because he did not have access to overseas witnesses that would have testified to his character and would have aided in his duress defense. The Fourth Circuit disagreed because the Sixth Amendment did not grant a defendant the right to any and all witnesses, only a compulsory process to obtain witnesses. This process was still limited by practicality, and the court did not have jurisdiction over the witnesses Abrar wanted to call. Additionally, outside concerns such as the security of Somalia made it very impracticable to locate and subpoena these witnesses. The Fourth Circuit also expressed concerns that some of Abrar’s witnesses might be fictional based on investigations into those witnesses that were made. The Fourth Circuit also did not think that the evidence that those witnesses would have put on would have been material because none of them actually witnessed Abrar’s abduction by pirates. Additionally, there were better witnesses such as the pirates Abrar claimed abducted him that the U.S. already had in custody that could testify to Abrar’s abduction. However, Abrar refused to call these witnesses because they would have contradicted his story. The district court even offered Abrar the opportunity to give testimony limited to his abduction but he refused. The Fourth Circuit also saw ample evidence on the record that Abrar was a willing participant. Therefore, the Fourth Circuit ruled that Abrar’s Fifth and Sixth Amendment rights were not violated.

Fourth Circuit Affirmed

The Fourth Circuit affirmed, holding that the court had jurisdiction over the actions of the defendants and that Abrar’s Fifth and Sixth Amendment rights were not violated.

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1Apr

Bank Fraudster’s Conviction Affirmed

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By Andrew Kilpinen

Today, in an unpublished opinion in U.S. v. Daren Gadsden, the 4th Circuit affirmed the convictions and sentence of the district court for the District of Maryland and remanded with instructions to reduce the restitution amount.

Gadsden Orchestrates Scheme to Defraud Section 8 Housing Authority

Daren Karem Gadsden (“Gadsden”) was a landlord in the Housing Authority of Baltimore City’s (“HABC”) Section 8 program. In 2010, Gadsden, with the help of three others, established bank accounts in fake business names, fraudulently created a consulting agreement between one of these fake businesses and the HABC with a forged signature of HABC’s CFO, and ultimately transferred $1.3 million of unauthorized funds into the accounts. A jury convicted Gadsden of one count of conspiracy to commit bank fraud, eight counts of bank fraud, two counts of aggravated identity theft, and two counts of evidence tampering. Gadsden was sentenced to 286 months imprisonment.

District Court Denies Gadsden Rule 29 Motion for Acquital

After the jury verdict, Gadsden moved for a judgment of acquittal under Rule 29 arguing that the evidence offered at trial did not support the conviction. Gadsden argued that the government did not satisfy it’s burden for the bank fraud charges, and as a consequence, did not satisfy the elements of the conspiracy or aggravated identity theft charges. The 4th Circuit reviewed the district court’s denial of the Rule 29 motion de novo.

Gadsden Scheme Placed Both Banks at Risk of Loss

On appeal, Gadsden argued that the government failed to satisfy its burden under § 1344(2). At trial, the government argued that Gadsden orchestrated an integrated scheme to obtain funds from HABC’s bank account and the fraudulently opened business accounts. Therefore, Gadsden argued, the government had to prove that Gadsden violated § 1344 as to both banks. While the Court refused to opine as to whether this standard was appropriate under the facts, the Court held that a reasonable jury could find that Gadsden placed both banks at a risk of loss that the banks did not knowingly accept. As a result, the district court did not err in denying Gadsden Rule 29 motion.

Conspiracy and Aggravated Identity Theft Charges Affirmed

As a result of finding that the evidence was sufficient to affirm the bank fraud charges, the Court affirmed the conspiracy charge and the aggravated identity theft charge as well.

Restitution Remanded for Reduction

The district court originally ordered Gadsden to pay $1.3 million in restitution to the bank that opened the fraudulent accounts. The Court found that because the bank was able to mitigate its losses to $1.1 million, Gadsden’s restitution should be reduced to that amount.

District Court Affirmed in Part and Remanded in Part

The 4th Circuit affirmed Gadsden’s convictions and sentence, and remanded the restitution judgment with instructions to reduce the amount to $1.1 million.

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1Apr

Fourth Circuit Holds 121-Month Sentence Not an April Fool’s Joke

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By Joshua P. Bussen

Today, April 1, 2015, in the published criminal opinion United States v. Rangel, the Fourth Circuit affirmed the Eastern District of Virginia’s denial of the defendant’s motion to vacate his sentence for constitutionally ineffective assistance.

The Rangel Trial

In 1995 Abel Castillo Rangel was indicted for several crimes related to marijuana possession and trafficking.  At his trial, the government presented evidence that during the course of a police “sting operation,”  Rangel, along with several coconspirators, was caught in possession of marijuana while also operating a trafficking business.  Additional evidence showed that shortly after arresting Rangel, the police searched his house and found three additional bags of marijuana, totaling 5.25 pounds.

After the close of the prosecution’s and defendant’s case-in-chief, the court held a conference to discuss jury instructions.  The alleged issue arose because Rangel’s counsel did not request any instruction regarding drug weight and its bearing on the “Pinkerton principles—that is, [a determination of weight] based on drugs with which Rangel was directly involved or drugs that were reasonably foreseeable to him . . . in furtherance of the conspiracy.”

The jury convicted Rangel and found that the conspiracy involved more than 1,000 kg of marijuana—subjecting Rangel to a 120-month mandatory minimum.

28 U.S.C. § 2255

Rangel filed a pro se petition to vacate the conviction and sentence under 28 U.S.C. § 2255, for ineffective counsel.  Rangel claimed that the failure to request jury instructions regarding the Pinkerton principles at both the jury-instruction conference and upon the commencement of the initial appeal indicate that he did not have an effective counsel.

In the Fourth Circuit, to “establish a claim of ineffective assistance of counsel, a defendant must show (1) that counsel’s performance was [objectively] deficient, and (2) that the deficient performance prejudiced the defense.”

Was Rangel’s Attorney “Ineffective?”

The circuit judges found that Rangel’s appeal was meritless because the “sentence would have been the same even with a proper jury instruction.”  Even if the jury had used the Pinkerton principles to Rangel’s favor, he would still have been subject to a mandatory minimum of 120 months and a maximum of five years.  Rangel was sentenced on the low end of the sentencing guidelines (121 months), making it unlikely that the district court judge would have sentenced him differently even with the Pinkerton principles.  Additionally, the district court allowed Rangel to serve his sentences for several different crimes concurrently, therefore he would have been in prison for at least 120 months either way.

The Fourth Circuit’s Decision

The Fourth Circuit, finding no error on the part of the district court because the result in this case would have been the same with or without the Pinkerton principles, affirmed the conviction and sentence of Abel Castillo Rangel.

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31Mar

No Error in Firearm Conviction

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By Caroline Daniel

In United States v. Baize, an unpublished opinion released today, the Fourth Circuit upheld Defendant Barry Dean Baize’s (“Baize”) conviction for possession of a firearm by a convicted felon.

Baize Challenges Conviction on Three Grounds

After being convicted of illegally possessing a firearm and receiving a sentence of 245 months in prison, Baize appealed his conviction on three grounds.  First, he argued that the prosecution presented insufficient evidence.  Second, he challenged the district court’s decision to dismiss a sick juror and replace her with an alternate.  Finally, he argued that the “in or affecting commerce” element of 18 U.S.C. § 922(g)(1) was unconstitutional as it was applied to him.

 Fourth Circuit Finds No Reversible Errors

The Fourth Circuit reviewed Baize’s first alleged error de novo.  As precedent required, the Court reviewed the evidence in the light most favorable to the State and accepted the trial court’s assessment of credibility.  Baize contested the prosecution’s evidence on the second element of the possession charge (that Baize voluntarily and intentionally possessed a firearm).  The Court held, however, that the prosecution’s presentation of three witnesses who had seen Baize with a firearm, coupled with a post-arrest phone call in which Baize admitted to owning a firearm, was sufficient evidence to meet the State’s burden that Baize voluntarily and intentionally possessed a firearm.

Next, Baize argued that the trial court erred when it dismissed an ill juror and replaced her with an alternate.  The Fourth Circuit reviewed this issue for abuse of discretion standard, and found that, based on Federal Rule of Criminal Procedure 24(c), the trial court had the authority to dismiss the ill juror.

Finally, Baize alleged that the “in or affecting commerce” element of  18 U.S.C. § 922(g)(1) was unconstitutional as applied.  The Fourth Circuit did not address this issue, however, noting that “Baize correctly acknowledge[d that] relief on this claim is foreclosed by controlling Circuit precedent.”

Trial Court Decision Affirmed

Finding no reversible errors, the Fourth Circuit affirmed Baize’s conviction and sentence.

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27Mar

District Courts Cannot Provide Sentencing Credits

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By Kaitlin Price

Today, Friday March 27, 2015, the Fourth Circuit, in an unpublished decision, affirmed United States v. Chacon. The Petitioner was found guilty of violating 21 U.S.C. Section 846 for intent to distribute and distribution of cocaine and methamphetamine and appealed the district court’s sentencing. The Petitioner specifically alleged that the district court erred in not providing Chacon with sentencing credit for 208 days he had severed.

The Fourth Circuit did not find any merit to Petitioner’s claim. The Supreme Court in United States v. Wilson explained that the district court does not have the authority to grant sentencing credits only the attorney general has that power. Therefore, the district court did not err in not considering a sentencing credit because it did not have the authority to do so.

The Fourth Circuit affirmed the district court’s decision.

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26Mar

Fourth Circuit Affirms Sentencing Enhancement for Drugs & Firearms

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By Michael Mitchell

Today, in the criminal case of United States v. Pina, an unpublished per curiam opinion, the Fourth Circuit affirmed the decision of the District Court for the Western District of North Carolina, upholding the defendant’s conviction and enhanced sentence for drug charges and firearm possession.

Defendant Challenges Two-Level Sentencing Enhancement

The Fourth Circuit considered whether the district court properly applied a two-level enhancement to the defendant’s sentence for drug-related conspiracy and possession of a firearm.  The defendant also alleged that his guilty plea was coerced and his sentence was “substantively unreasonable.”

Defendant Convicted for Drug & Firearm Charges

The district court sentenced the defendant Jose Francisco Jiminez Pina to 180 months in prison after he pled guilty to conspiracy to distribute and possess with intent to distribute at least 500 grams of a mixture and substance containing a detectable amount of methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime.  The district court sentenced the defendant to the mandatory-minimum 120 months for the drug conspiracy and 60 consecutive months for the firearm conviction.  Acknowledging that there were no meritorious issues on appeal under the framework of Anders v. California, the defendant challenged whether the two-level enhancement was properly applied and whether his case should be remanded to the district court for application of the Sentencing Guidelines.

Fourth Circuit Applies “Plain Error” Standard of Review

To evaluate whether the two-level enhancement was appropriate, the Fourth Circuit considered reasonableness “under a deferential abuse-of-discretion standard,” according to Gall v. United States.  The court found no “‘significant procedural error,” such as improper calculation of the sentencing range under the Guidelines or inadequate explanation of the sentence to the defendant.  Therefore, the Fourth Circuit instead reviewed the case for “plain error only.”

Mandatory Minimum Sentence Satisfies Sentencing Guidelines

The Fourth Circuit considered the defendant’s claim by evaluating the Sentencing Guidelines, finding that the defendant had been convicted of a crime wherein methamphetamine production or distribute was a principal purpose of the premises.  The district court applied the mandatory minimum sentence of 120 months for the defendant’s drug conviction, “the lowest sentence it could impose.”  Thus, the Fourth Circuit determined that there was “no plain error” in the calculation of the defendant’s sentence according to the Sentencing Guidelines.  The Fourth Circuit also found the sentence “substantively reasonable” based on a “totality of the circumstances.”  The defendant was also unable to overcome the rebuttable presumption in favor of the district court’s judgment with regard to his plea agreement allegations.

Fourth Circuit Affirms District Court’s Enhanced Sentence

The Fourth Circuit affirmed the district court’s judgment upholding the defendant’s conviction for conspiracy to distribute methamphetamine and firearm possession as well as the two-level sentencing enhancement for a total of 180 months in prison.

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25Mar

Fourth Circuit Affirms Sentencing Judgment

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By Katharine Yale

Yesterday, in the consolidated unpublished criminal case United States v. Owens, the Fourth Circuit reviewed the sentences of two defendants, Matthew Owens and Dennis Ross, and affirmed the district court’s judgment. On review, the two defendants asked the Fourth Circuit to determine whether the court below plainly erred in calculating Owens’s criminal history category or whether the court below imposed an unreasonable sentence on either defendant.

Owens Did Not Object to His Criminal History Calculation, Therefore the Standard of Review is Plain Error

To find plain error, the appellant must show that an error occurred, that it was plain, and that it affected the appellant’s substantial rights.   If plain error is found by the reviewing court, the correction of such error is still within the reviewing court’s discretion and such discretion should not be exercised “unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings.”

Here, the Fourth Circuit found that the district court did not err in calculating Owens’s criminal history category because it properly added one criminal history point for his past shoplifting conviction.

In Reviewing the Reasonableness of a Conviction, the Reviewing Court Will Use an Abuse of Discretion Standard

First, under the abuse of discretion standard, the reviewing court will look for any significant procedural errors, which could include an improper calculation of the sentencing Guidelines range, selecting a sentence based on erroneous facts, or failing to explain the sentence.  If there is no procedural error, the reasonableness of the sentence will be reviewed using the totality of the circumstances. Using this test, the sentence must be “’sufficient, but not greater than necessary,’ to satisfy the goals of sentencing.”

On appeal, the court will presume that a sentence with a properly calculated advisory Guidelines range is reasonable, and the defendant bears the burden to rebut that presumption. He may only do so by showing that it is unreasonable when compared to the 18 U.S.C. § 3553(a) factors.

The Defendants’ Sentences are Reasonable

Here, the Fourth Circuit found that the district court committed no procedural error because both defendants received adequate, individualized explanations of their sentences and both sentences were within the Guidelines range. The Fourth Circuit also found that both sentences are substantively reasonable.

Fourth Circuit Finds No Meritorious Issues for Appeal and Affirms the District Court’s Sentencing Judgment

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23Mar

No Merit in Appeal of District Court Sentence

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By Marcus Fields

Today, in United States v. Montgomery, an unpublished decision, the Fourth Circuit affirmed the district court’s revocation of Montgomery’s supervised release and sentence of 22 months.

Brief Filed by Montgomery’s Counsel

Although Montgomery’s counsel did not believe there were any meritorious grounds for appeal, he filed a brief with the court raising four potential challenges to the district court’s decision.  This brief was filed in accordance with Anders v. California, a Supreme Court case outlining the responsibilities of court-appointed counsel to defendants on appeals of right when the counsel does not believe the appeal to be meritorious. The four grounds raised by Montgomery’s counsel were (1) the sentence was unreasonable, (2) Montgomery was denied chance to be heard at sentencing, (3) ineffective assistance of counsel, and (4) prosecutorial misconduct.  Montgomery was notified of his right to file a supplemental pro-se brief but declined to do so.

No Meritorious Grounds for Appeal

Anders requires the reviewing court to examine the entire record below for any meritorious grounds for appeal. Doing so, the Fourth Circuit found each of the potential grounds raised by Montgomery’s counsel to be without merit.  It noted that “a district court has broad discretion when imposing a sentence upon revocation of supervised release,” and because Montgomery did not challenge the reasonableness at trial, the Fourth Circuit reviewed the sentence for plain error.  Because Montgomery’s sentence was within the statutory maximum and not plainly unreasonable the Fourth Circuit affirmed the district court’s sentence.  The Fourth Circuit also found that Montgomery was given the chance to be heard and that there was no evidence of prosecutorial misconduct.  It declined to consider the ineffective assistance of counsel claim on direct appeal because such appeals are only allowed “where the record conclusively establishes ineffective assistance.” See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

Counsel’s Ability to Withdraw From Representation

After affirming the district court’s judgment, the Fourth Circuit instructed Montgomery’s counsel to inform Montgomery of his right to petition the Supreme Court for review.  If Montgomery’s counsel believed such a petition to be frivolous, he would be allowed to move for leave to withdraw from representation.

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23Mar

Firearm Found in Home Where Drug Deal Went Down Enough for USSG § 2D1.1(b)(1) Enhancement

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By Elissa Hachmeister

Today, March 23, 2015, in the criminal case United States v. John A. Boyles, the Fourth Circuit affirmed in an unpublished per curiam opinion the district court’s judgment applying a two-level enhancement pursuant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1).

Enhancement for Drug Offense with Possession of a Dangerous Weapon

John A. Boyles pled guilty to aiding and abetting the distribution of crack cocaine. The district court imposed a 97-month sentence and a 3-year term of supervised release. The only issue on appeal was whether the district court erred in enhancing Boyles’ offense level under USSG § 2D1.1(b)(1). Application of the Guidelines enhancement is reviewed for clear error.

Under the Guidelines, a two-level increase in a defendant’s base offense level is appropriate when a drug offense involves possession of a dangerous weapon, including a firearm. USSG § 2D1.1(b)(1). The weapon at issue must be “possessed in connection with drug activity that was part of the same course of conduct or common scheme” as the drug offense that the defendant was convicted of. United States v. Manigan.

The Government need not prove that the defendant actually possessed the gun during any specific act. Instead, it is sufficient for the Government to show constructive possession of the firearm, which it may do through circumstantial evidence. Once the Government has offered proof of constructive possession, the burden shifts to the defendant to show that any connection between his possession of a firearm and his drug offense is “clearly improbable.” United States v. Harris.

Facts Support the Enhancement

The Fourth Circuit looked to the facts set forth in the presentence report, which Boyles did not contest, and concluded that the facts support the application of the enhancement. It was enough for the Fourth Circuit that the firearm was found in the bedroom of Boyles’ home, the same home where he had sold crack cocaine to a confidential informant and where drugs and drug paraphernalia were found. Under the circumstances, the district court’s application of the enhancement was not clear error.

The Fourth Circuit Affirmed

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20Mar

Cookie Cutter Sentencing Requires Explanation

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By Andrew Kilpinen

On Wednesday, March 18, 2015, in a published opinion U.S. v. Xavier Lymas, the 4th Circuit reversed and remanded three sentencing decisions from the Eastern District of North Carolina for failing to provide adequate explanations for why it varied from sentencing guidelines and not imposing individualized sentences and explanations.

Defendants Indicted for Convenience Store Robbery Spree

Defendants Xavier Lymas (“Lymas”), Lionel Newman (“Newman”), and Jessie Gomez (“Gomez”) were named in an eight-count indictment for a string of armed convenience store robberies in 2011. Between October 27 and October 30, a mixture of the three defendants succeeded at robbing two convenience stores, and failed at robbing two other convenience stores. Two .38 caliber handguns were used in all four attempts, and the spree included one store clerk receiving a pistol-whip to the back of the head.

District Court Colorfully Rejected Sentencing Guidelines and Imposed Identical Sentences

The district court judge likened sentencing guidelines to an ostrich sticking its head in the sand. The judge stated that all three defendants should receive an identical sentence in spite of the fact that each individual’s pre-sentence report recommended different sentences. Based on the violence of the crime, the threat to society, and the random introduction of violence into a commercial setting, the judge concluded that the sentencing guidelines underrepresented justice and sentenced all three defendants to a 200-month sentence. Defendants appealed claiming that the sentences were procedurally and substantively unreasonable.

4th Circuit Finds Procedural Error in Judge’s Failure to Explain Sentences

The 4th Circuit reviewed defendant’s sentences using an abuse-of-discretion standard under 18 U.S.C. §3553(a). The Court agreed with defendant’s argument that the district court committed procedural error because it offered no individualized rationale to justify the sentences it imposed. Specifically, the Court found that the lower court judge failed to sufficiently explain why it rejected the guidelines, and also failed to explain why it applied a “cookie-cutter” approach to sentencing the three defendants.

The 4th Circuit vacated the sentences and remanded the case for re-sentencing.

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17Mar

Kings’ Convictions Upheld

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By Caroline Daniel

In United States v. Cornell, a published opinion released yesterday (March 16), the Fourth Circuit affirmed the convictions of three members of the Greensboro tribe of the Latin Kings.

Defendants Assert Multiple Errors by Prosecution

Co-defendants Jorge Cornell (a.k.a King Jay), Ernesto Wilson (a.k.a. King Yayo), and Russell Kilfoil (a.k.a. King Peaceful) (collectively “Defendants”) were charged with and convicted of conspiracy to violate the Racketeering Influenced and Corrupt Organizations Act (“RICO”).  18 U.S.C. § 1962.  Defendants made several claims of error in their appeal, mainly arguing that the district court improperly instructed the jury and that the prosecution lacked sufficient evidence to convict them of violating RICO.

Kings’ Conspiracy in Greensboro

Centered in Chicago and New York City, the Latin Kings is a gang with localized branches or “tribes” throughout the country.  The Fourth Circuit noted that “central to the organization is a culture of violence” as well as the “various illegal activities its members undertake.”

Defendants were key leaders in the Greensboro tribe and were charged (along with other gang members not included in this appeal) with violating 18 U.S.C. § 1962(d) by “knowingly and intentionally conspir[ing] to conduct and participate, directly and indirectly, in the conduct of the affairs of [a criminal] enterprise through a pattern of racketeering activity.”  During their trial, the prosecution presented evidence of the defendants’ conspiracy to commit murder, armed robbery, and fraud, among other illegal activities.  The defendants were individually found guilty: Cornell was sentenced to 336 months; Wilson was sentenced to 204 months; and Kilfoil was sentenced to 180 months.  Following their sentencing, they filed this appeal.

“Minimal” Jury Instructions Were Reasonable

First, the defendants argued that the trial judge erroneously instructed the jury that the prosecution had to prove that the conspiracy “affected interstate or foreign commerce in any way, no matter how minimal.”  The district court based this instruction on the Fourth Circuit’s earlier decision in United States v. Gray, but the defendants argued that RICO requires more than a minimal affect on foreign commerce, citing the Sixth Circuit’s decision in Waucaush v. United States.  In Waucaush, the Sixth Circuit held that an illegal conspiracy must have a “substantial effect” on interstate commerce to violate RICO.

The Fourth Circuit noted that it is not bound by the Waucaush decision and “doubt[ed] its validity.”  Further, the Court explained that the Waucaush holding was “limited to cases ‘where the enterprise itself did not engage in economic activity.'”  Here, the prosecution presented “ample” evidence of the Latin Kings’ economic activity, including bank fraud and various other scams.  The Fourth Circuit determined that this was sufficient to determine that the Waucaush reasoning should not apply here, and, accordingly, found that the district court’s jury instructions were reasonable.

Prosecution Presented More Than Sufficient Evidence

Additionally, the defendants claimed that the evidence of bank fraud was insufficient to show that the conspiracy affected interstate commerce.  The Fourth Circuit disagreed, but held that even if the bank fraud were considered insufficient, the prosecution presented ample other evidence to satisfy the “de minimis” interstate commerce requirement.  The Court held that evidence that the Latin Kings communicated about their conspiracies via phones and evidence that they committed robberies using guns that traveled in interstate commerce were also sufficient to satisfy the requirement.

Fourth Circuit Finds no Error in Conviction

Reviewing the district court’s decision, the Fourth Circuit found “no reversible error,” and, subsequently affirmed the defendants’ convictions.  The defendants appealed on several other joint and individual grounds, but the Fourth Circuit affirmed each of their convictions.

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