Wake Forest Law Review
16Feb

District Court Committed No Error in Revoking Supervised Release

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By Marcus Fields

Last Thursday, in United States v. Hill, an unpublished decision, the Fourth Circuit affirmed the District Court for the District of South Carolina’s revocation of Larry Hill’s release. The Fourth Circuit found that each of Hill’s five contentions on appeal were without merit.

The district court found that Hill violated his supervised release by retaliating “against a federal judge and federal law enforcement officers by making false claims, in violation of 18 U.S.C. § 1521.” The court then revoked said release, sentenced Hill to ten months in prison, and continued him on supervised release for two years. Hill appealed this decision citing five alleged errors by the district court.

District Court Proceedings did not Violate Due Process

Hill first claimed that the district court erred by depriving him of due process. Reviewing this allegation de novo, the Fourth Circuit found that the record indicated that Hill received appropriate due process. It noted that Hill “received a full hearing, was permitted to confront his accusers, and was given notice of the charges via the supervised release revocation report.”

Hill Waived Right to Appeal Denial of his Motion to Dismiss

The Fourth Circuit next noted that because Hill did not “address the district court’s grounds for denying his motion to dismiss” he forfeited the issue on appeal.

District Court Did Not Abuse Its Discretion in Denying Requests for Witness Subpoenas

Hill next claimed that the district court erred in denying his requests for witness subpoenas. The Fourth Circuit reviewed this denial for abuse of discretion, but reviewed whether this denial violated Hill’s right to confrontation de novo. Because “supervised release revocation hearings are not ‘criminal prosecutions’ under the Sixth Amendment, the Fourth Circuit has previously held that defendants in such hearings are only entitled to the right of confrontation found in Fed. R. Crim. P. 32.1(b)(2)(C). Regardless, the Fourth Circuit found that “Hill was afforded a full opportunity to confront his accusers.”

District Court Did Not Abuse Its Discretion in Denying Motion for Recusal

Hill next claimed the district court erred in denying his motion for recusal. Citing 28 U.S.C. § 455, the Fourth Circuit explained that a judge should recuse herself “in any proceeding in which h[er] impartiality might reasonably be questioned; [w]here [s]he has a personal bias … or where she has a financial interest in the litigation.” Generally, the personal bias must come from outside the judicial proceeding and for a financial interest to be disqualifying the litigation at issue must substantially affect the interest.

Hill seems to contest that because “he was charged with attempting to file a false lien against the presiding judge,” the judge has a financial interest in the litigation. The Fourth Circuit notes that “no reasonable person would entertain” such an assertion, and even if the court were to consider it, the “‘interest’ is far too remote and speculative to necessitate recusal.”

District Court Did Not Abuse Its Discretion in Revoking Hill’s Release

Finally, Hill claimed that the district court lacked sufficient evidence to revoke his supervised release. The Fourth Circuit articulated that in order to revoke a supervised release, the district court must find by a preponderance of the evidence that the defendant violated a condition of the release. Reviewing for clear error, the Fourth Circuit concluded that “the district court did not commit clear error in finding, by a preponderance of the evidence, that Hill attempted to create a false liens” in violation of his supervised release.

Because the Fourth Circuit found no merit in any of Hill’s contentions, it affirmed the judgment of the district court.

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12Feb

Fourth Circuit Affirms Denial of a Below-Guidelines Criminal Sentence

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By Diana C. Castro

Today, in the criminal case United States v. Santos Rios-Santos, the Fourth Circuit affirmed, in an unpublished opinion, the decision of the District Court for the Eastern District of North Carolina. The District Court denied the defendant’s request for a below-Guidelines sentence.

Defendant Argues for an Individualized Reason

Santos Rios-Santos contends that the District Court erred in failing to adequately provide an individualized reason explaining why it denied his request for a sentence below the advisory Guidelines.

Moreover, Santos Rios-Santos argues that the fact of his prior felony conviction should have been presented to a jury and proven beyond a reasonable doubt.

Defendant Pled Guilty to Illegal Reentry Into the United States Following a Conviction

Santos Rios-Santos pled guilty to illegal reentry into the United Stated after having been convicted of an aggravated felony in violation of 8 U.S.C. § 1236(b) (2012).   At his sentencing hearing before the District Court, the defendant’s attorney requested a sentence below the advisory Guidelines range of 24–30 months’ imprisonment. The District Court rejected the request and instead sentenced Santos Rios-Santos to 28 months. 

The Fourth Circuit Applies “Reasonableness” Standard

 The Fourth Circuit reviewed the sentence for procedural and substantive reasonableness. Following that determination, the court considered whether the District Court (1) applied the 18 U.S.C. § 3553(a) (2012) factors, (2) analyzed any arguments presented by the parties, and (3) sufficiently explained the selected sentence.

The District Court’s Explanation Was Sufficient Under Gall and Carter

 Looking for abuse of discretion, the Fourth Circuit reviewed both the procedural and substantive reasonableness of the defendant’s sentence. Gall v. United States, 552 U.S. 38, 46 (2007).

Having determined the District Court properly calculated the sentence under the Guidelines, the Fourth Circuit considered whether the District Court considered the 18 U.S.C. § 3553(a) (2012) factors, analyzed any of the parties’ arguments, and sufficiently explained the selected sentence. See Rita v. United States, 551 U.S. 338, 346–47; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Here, the court held that the District Court’s explanation was sufficient to show that it conducted the analysis necessary under Gall and Carter.

Finally, the Fourth Circuit reviewed the substantive reasonableness of the sentence “taking into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The court applied a presumption of correctness because the sentence was within the properly-calculated Guidelines range. Rita, 551 U.S. at 346–47.

Regarding the defendant’s argument that his prior conviction should have been presented to a jury and proven beyond a reasonable doubt, the Fourth Circuit points out that Santos Rios-Santos conceded that his argument is foreclosed by Almendarez-Torres v. United States, which held that a statute permitting an increased sentence based on a prior conviction is a penalty provision, not the element of an offense. 523 U.S. 224, 228–35. 239–47 (1998).

Court of Appeals for the Fourth Circuit Affirmed

Applying the reasonableness standard and the analysis under Gall and Carter, the Fourth Circuit affirmed the District Court’s selected sentence.

 

 

 

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12Feb

One Year Sentence for Obstructing Justice Affirmed

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By Evelyn Norton

Today, in the criminal case of United States v. Meredith, an unpublished per curiam opinion, the Fourth Circuit affirmed the decision of the U.S. District Court for the Northern District of West Virginia sentencing Ms. Loretta Meredith to one year and one day of imprisonment.

Defendant Challenged the Sentence Imposed

The District Court found Ms. Meredith guilty of conspiring to knowingly and corruptly attempt to obstruct, influence, and impede an official proceeding, thus violating 18 U.S.C. § 1512(c)(2) and (k).

On appeal, counsel for Ms. Meredith argued that the District Court: (1) wrongly increased the base offense level for Ms. Meredith’s Guidelines range for substantially interfering with the administration of justice; (2) clearly erred in increasing the base offense level for Ms. Meredith’s Guidelines range because the offense was extensive in scope, planning, or preparation; and (3) imposed an unreasonable sentence.

The Fourth Circuit reviewed the District Court’s factual findings for clear error and legal conclusions de novo.

Defendant Did Substantially Interfere with the Administration of Justice

First,  the Fourth Circuit considered whether the District Court wrongly increased the base offense level for Ms. Meredith’s Guidelines range for substantially interfering with the administration of justice.  The Court observed that the U.S. Sentencing Guidelines Manual § 2J1.2 comment 1 states that “substantial interference with the administration of justice” includes “unnecessary expenditure of substantial governmental or court resources.”  Here, the Court found that the record showed that significant government resources were invested to resolve Ms. Meredith’s attempts to obstruct justice.  Thus, the Court concluded that the District Court properly increased Ms. Meredith’s offense level.

 Defendant’s Attempts to Obstruct Justice Were Extensive

Second, the Fourth Circuit considered whether the District Court clearly erred in increasing the base offense level for Ms. Meredith’s Guidelines range because the offense was extensive in scope, planning, or preparation.  Upon review of the record, the Court concluded that Ms. Meredith’s attempts to obstruct justice were, in fact, extensive in scope, planning, or preparation.  Thus, the Court held that the District Court also properly applied the sentencing enhancement.

Defendant’s Sentence Is Reasonable

Third, the Fourth Circuit considered whether the District Court abused its discretion in imposing an unreasonable sentence.  The Court found that Ms. Meredith’s sentence was not procedurally unreasonable because the District Court properly calculated the Guidelines range and considered the appropriate factors.  Furthermore, the Court found that Ms. Meredith failed to meet the defendant’s burden to rebut the presumption on appeal that the sentence was substantively unreasonable.  Thus, the Court concluded that the District Court did not impose an unreasonable sentence.

Holding

The Fourth Circuit affirmed the District Court’s decision sentencing Ms. Meredith to one year and one day of imprisonment for conspiring to knowingly and corruptly attempt to obstruct, influence, and impede an official proceeding.

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29Jan

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

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By Diana C. Castro

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

 Defendant Questions Whether His Guilty Plea Was Adequately Supported

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

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

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

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

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

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

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

The Magistrate Judge Conducted a Thorough Plea Colloquy

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

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

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

Court of Appeals for the Fourth Circuit Court Affirmed

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

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

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15Jan

Fourth Circuit Reverses Error in Misjoinder of Criminal Counts

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By: Diana C. Castro

Last Tuesday, January 13th, in United States v. Hawkins, the Fourth Circuit affirmed in part, vacated in part, and remanded the judgment of the District Court for the District of Maryland convicting Hawkins of separate counts related to a carjacking and a subsequent arrest as a felon in possession of a firearm.

A Federal Grand Jury Indicted Hawkins on Four Counts; Hawkins Moved to Sever and Objected to the Admissibility of Evidence.

Count I alleged a carjacking in violation of 18 U.S.C. § 2119. Count II alleged that Hawkins knowingly possessed and brandished a firearm in furtherance of the carjacking, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Count III alleged that Hawkins, a convicted felon, knowingly possessed a loaded firearm, in violation of 18 U.S.C. § 922(g)(1). Lastly, Count IV alleged another felon in possession of a firearm charge, related to a separate incident. The government later chose not to proceed on Count IV.

Prior to trial, Hawkins moved to sever the carjacking counts from the felon in possession counts. However, the District Court denied the motion because it saw no reason as to why a jury would not be able to evaluate the evidence objectively.

Even though Hawkins pled not guilty as to all three counts, he conceded Count III prior to and during opening statements.

During trial, the government introduced two tape recordings where Hawkins admitted that he gambled and sold drugs for a living, and referenced the loaded firearm. Hawkins objected to the admission of this statement for lack of relevance to any issue because he had conceded his guilt as to Count III. Additionally, Hawkins argued the tapes constituted evidence of other crimes under Federal Rule of Evidence 404(b).

The District Court denied Hawkins’s motion to suppress the statement finding that the probative value of the statement substantially outweighed any undue prejudice. Moreover, the district court found that under Rule 404(b), the statement was admissible because it was evidence of Hawkins’s identity.

Ultimately, the jury found Hawkins guilty on all three counts.

The District Court Erred in Allowing Joinder of Counts I and II with Count III because the Charges are Not of a Same or Similar Character.

While Federal Rule of Criminal Procedure 8(a) permits very broad joinder, it is not so broad as to cover discrete and dissimilar offenses. After reviewing the record, the Fourth Circuit held that the carjacking counts and Count III were not of a “same or similar character.”

In its analysis, the Fourth Circuit distinguished United States v. Cole and United States v. Rousseau, a Fourth Circuit and a Ninth Circuit case proposed by the government. In contrast, the Fourth Circuit found the Fifth Circuit Court’s analysis in United States v. Holloway to be persuasive. Holloway held joinder improper on a factual scenario very similar to the one in the case at bar.

In reversing, the Fourth Circuit reasoned that the only connection between the carjacking counts and Count III was Hawkins.

An Error Involving Misjoinder Requires Reversal Only If the Misjoinder Results in Actual Prejudice.

Under United States v. Lane, a U.S. Supreme Court case, a misjoinder “affects substantial rights and requires reversal only if the misjoinder results in actual prejudice because it had substantial and injurious effect or influence in determining the jury’s verdict.”

Although the evidence against Hawkins on Count III was overwhelming, the evidence against him on Counts I and II was limited to a single witness’ testimony and Hawkins’ denial that he was involved in the crime. Thus, the Fourth Circuit concluded that it was possible that had the three offenses not been joined for trial, Count III’s prejudicial evidence would not have reached the jury, and Hawkins might have been acquitted of the carjacking counts.

There Was No Relation Between Hawkins’ Possession of a Firearm in Count III and Any of the Elements of the Carjacking Counts.

Against the government’s arguments, the Fourth Circuit held that all of the evidence on Count III and that on Counts I and II would not have been mutually admissible under Rule 404(b) had there been separate trials.

Judgment affirmed in part, vacated in part, and remanded.

The Fourth Circuit vacated Hawkins’s convictions under Counts I and II, remanded to the District Court for retrial on Counts I and II and for sentencing on Count III.

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17Nov

Fourth Circuit Upholds Waiver Of Right to Appeal Sentence Despite New Supreme Court Precedent

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By: Diana C. Castro

Today, in a published opinion, the Fourth Circuit Court of Appeals affirmed the District Court’s decision upholding a waiver to appeal a mandatory minimum sentence based on new United States Supreme Court precedent.

Defendant committed Armed Robbery at a Family Dollar Store and Subsequently Accepted a Plea Agreement.

Security cameras at a Family Dollar store captured Defendant Sherwin Archie, armed, demanding money from the cashier. Days later, police recovered the firearm used in the robbery when they executed a search warrant on Archie’s home. Archie subsequently confessed to the Family Dollar robbery.

Taking a plea deal, Archie pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) (Count One); Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Count Two); and using and carrying a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) (Count Three). In exchange for the guilty plea, the state dismissed three remaining charges.

Under the terms of the plea deal, Archie knowingly and expressly waived all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the advisory Guideline range established at sentencing, and waived all rights to contest the conviction or sentence in any post-conviction proceeding. The plea agreement advised Archie of the statutory sentencing range for each charge and noted that, based on his criminal history, he could face a sentencing enhancement under the ACCA.

With regards to using and carrying a firearm in furtherance of a crime of violence, the District Court recognized that the seven-year minimum sentence applied only when the firearm was “brandished” during the crime, and the indictment did not assert brandishing as a separate element. Government counsel argued that brandishing was a sentencing factor that did not have to be specifically alleged in the indictment. Defense counsel did not object and the District Court accepted Archie’s guilty plea.

In preparation for sentencing, the United States Probation Office’s presentence investigation report (“PSR”) designated Archie an armed career criminal under the ACCA based on three prior felony convictions. The ACCA designation caused Archie’s statutory minimum sentence to increase. The PSR also included a minimum sentence for Count Three because the investigatory evidence established that Archie had brandished the firearm during the Family Dollar robbery.

Before sentencing, Archie objected to his career offender designation under the ACCA, arguing that the Government lacked adequate factual support for one of the previous convictions.

The District Court overruled Archie’s objection, concluding the records were sufficient by a preponderance of the evidence. Adopting the PSR, the District Court sentenced Archie to the mandatory minimum.

Four months after Archie’s sentencing, the Supreme Court decided Alleyne v. United States, 133 S. Ct. 2151 (2013). In Alleyne, the Court overruled existing precedent and held that “any fact that increases the mandatory minimum is an ‘element’that must be submitted to the jury” and found beyond a reasonable doubt. 133 S. Ct. at 2155. In Alleyne, as here, the mandatory minimum sentence was based on the court’s finding by a preponderance of the evidence at sentencing that a firearm was “brandished,” in violation of 18 U.S.C. § 924. The Supreme Court reversed and vacated the defendant’s sentence because the “[j]udge rather than the jury, found brandishing, thus violating [his] Sixth Amendment rights.” Id. at 2163-64.

Fourth Circuit Considered Whether the Defendant Waived the Right to Argue on Appeal that the District Court Improperly Enhanced His Sentence Based on Judicially Determined Facts in Violation of Alleyne v. United States.

The Fourth Circuit cited precedent to support the conclusion that when the Government seeks enforcement of an appeal waiver and there is no claim that the Government breached its obligations under the plea agreement, the waiver will be enforced to preclude a defendant from appealing a specific issue if the record establishes that the waiver is valid and the issue being appealed is within the scope of the waiver.

More narrowly, the Fourth Circuit rejected Archie’s challenge that his Alleyne claim falls outside the scope of the waiver appeal.

At the time of Archie’s sentencing, Supreme Court precedent under Harris v. United States, 536 U.S. 545, 568 (2002), stated that factors triggering mandatory minimum sentences did not need to be alleged in the indictment, submitted to the jury, or proven beyond a reasonable doubt. Thus, the District Court properly applied the law under Harris.

 Despite a Change in Precedent, a Party Cannot Request to Re-Bargain the Waiver of an Appeal.

The Fourth Circuit addressed the proper scope of an appeal waiver in light of a subsequent change in the law in United States v. Blick, 408 F.3d 162 (4th Cir. 2005). In that case, the Fourth Circuit focused largely on the idea that “[p]lea bargains rest on contractual principles, and each party should receive the benefit of its bargain.” Consequently, although the law changed, the defendant’s expectations did not change. A party cannot ask to re-bargain the waiver of an appeal based on changes in the law. Here, Archie assumed the risk of accepting the plea agreement in exchange for the Government’s concessions, and he was sentenced in the manner agreed upon.

Furthermore, the Fourth Circuit refused to invalidate the waiver holding that it has previously only done so when sentencing court violated a fundamental constitutional or statutory right that was firmly established at the time of sentencing.

In essence, the Fourth Circuit held that Archie’s claim does not fall within the scope of the valid appeal waiver because “defendants cannot knowingly and voluntarily enter an appeal waiver, receive a sentence that fully complies with the law applicable at the time of sentencing, and then, when that law later changes, argue that the issue falls outside the binding scope of the waiver.”

Fourth Circuit Considered Whether the Government Presented Sufficient Evidence to Sustain the Defendant’s Career Offender Designation Under the ACCA.

Archie argued that several of the computerized used to establish one of his previous violent felony conviction contained inconsistent dates, and one document included a criminal indictment number tied to another defendant. According to Archie, these inconsistencies, when coupled with the age of the conviction, “insert[ed] the possibility [of] more than just scrivener’s error but, indeed, wholesale mistake.”

Using a Deferential Standard of Review, the Fourth Circuit held that Certain Inconsistencies are Not Enough to Overturn the Trial Court’s Findings When There is Additional Evidence Indicating That The Mistake Was Likely a Scrivener’s Error. 

Reviewing the District Court’s judgment for clear error, the Fourth Circuit held that when faced with records that contain inconsistencies, such as different dates of the same offense, the court has previously concluded that certain discrepancies do not overturn the trial court’s conclusion when there is additional evidence to indicate that the mistake was likely a typographical error. Thus, as most of Archie’s arguments were based on allegations of such mistakes, the Fourth Circuit declined to disturb the District Court’s finding.

Fourth Circuit Affirmed the District Court’s Sentence.

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13Nov

Material Breach of Plea Agreement by Defendant Relieves the Government of its Obligations

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By: Rolf Garcia-Gallont

Today, in United States v. King, the Fourth Circuit affirmed by unpublished per curiam opinion the sentences against Donnie King, Sr., (“Mr. King”) and Lou Wells King (“Mrs. King) for making materially false and fraudulent misrepresentations in relation to their Chapter 11 bankruptcy proceeding.

On appeal, the Kings contended that (1) the Government breached its plea agreements with the Kings by moving to be relieved of its obligations under the plea agreements; (2) the district court erred in permitting the Government to be relieved of its obligations under the plea agreements; (3) the Government committed prosecutorial misconduct by moving for relief from its obligations under the plea agreements; and (4) Mr. King’s sentence was unreasonable. Because the Kings did not raise these claims at trial, the Circuit Court reviewed for plain error.

Because the Kings Committed a Material Breach of the Plea Agreements, the Government Was Entitled to Move for Relief of its Obligations Under the Plea Agreement . Therefore, the Government’s Motion Was Neither a Breach of the Agreement nor Prosecutorial Misconduct.

The Kings were required by the plea agreements to abide by any conditions of release before their sentencing. One such condition was that the Kings abide by federal law. The Kings subsequently filed a false tax return in violation of federal law.

The Fourth Circuit held that as a matter of contract interpretation, this violation constituted a material breach of the plea agreements, and that the Government was entitled to move for relief of its own obligations. In light of the Kings’ material breach, the district court did not err in granting that relief. Additionally, because the Government was entitled to relief, moving to request it did not constitute prosecutorial misconduct.

Mr. King Waived His Right to Appeal the Reasonableness of His Sentence

As part of his plea agreement, Mr. King agreed to a broad waiver of his right to appeal. Because the record of Mr. King’s Rule 11 colloquy showed that Mr. King knowingly and intelligently agreed to the waiver, the Court held that the waiver was valid. Finally, the Court held that Mr. King’s attempt to appeal the reasonableness of his sentence was within the scope of his appeal waiver, and dismissed the appeal of his sentence.

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4Nov

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

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By Chad M. Zimlich

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

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

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

Avila Had an Exceedingly Long History of Criminal Conduct

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

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

The California Burglary Conviction Qualifies as an Aggravated Felony

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

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

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

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

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

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

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

First-Degree Burglary Is a Crime of Violence

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

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27Oct

Fourth Circuit Denies Certificate of Appealability on § 2255 Motion.

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By Marcus Fields

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

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

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

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

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

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

Anderson’s Appeal Dismissed.

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

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