Wake Forest Law Review
10Apr

Odor of Marijuana Gives Probable Cause to Search Car Trunk

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By Lauren D. Emery

On April 10, 2015, in United States v. Anthony Champion, an unpublished criminal opinion, the Fourth Circuit affirmed the ruling of the district court.

Traffic Stop Results in Discovery of Stolen Weapons

On January 13, 2013, a Virginia State Trooper pulled over Anthony Champion after witnessing him speeding and violating a Virginia law against having dangling objects which obstruct a driver’s view of the roadway. Rather than immediately pull over, Champion drove erratically and, after finally pulling over, exited the vehicle and one of his passengers moved into the driver’s seat.  When the trooper approached the car, Champion admitted he did not have a license and the trooper smelled a “‘fairly strong’ odor of marijuana.”  At this point the trooper requested additional backup and then conducted a search of the vehicle, including the trunk.  During the search of the trunk, the troopers found nine stolen weapons in a gym bag.

Does Marijuana Odor Give Probable Cause to Search a Car’s Trunk?

Champion appealed his conviction for transporting stolen firearms which were found in the  trunk of the car he was driving.  Specifically, he argued that the evidence of the weapons in the trunk should have been suppressed at trial because “the mere odor of burnt marijuana in the passenger compartment is insufficient to establish probable cause to search the trunk of a car.”

Totality of the Circumstances Suggests Trooper had Probable Cause to Search Trunk

In its opinion, the Fourth Circuit declined to decide whether the smell of marijuana in the passenger compartment of a car is ever sufficient on its own to give probable cause to search a vehicle’s trunk–an issue on which the circuit courts appear to be split.  Instead, the Fourth Circuit concluded that the district court considered a totality of the circumstances rather than relying solely upon the odor of marijuana.  The factors suggesting the troopers had probable cause included: the strong odor of marijuana; the fact that when questioned about whether there was contraband in the car, Champion replied “none that I know of”; his passengers’ confessions that they had been smoking marijuana while in the vehicle; and the fact that the occupants gave inconsistent statements regarding their destination.   All of these factors suggested the occupants of the vehicle were involved in some criminal activity and as such there was probable cause to search the trunk.

Fourth Circuit Affirms District Court Judgment

The Fourth Circuit affirmed the district court’s denial of Champion’s motion to suppress the firearms discovered in the trunk because they were found as a result of a lawful search of the vehicle.

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9Apr

Fourth Circuit Affirms Drug Conviction & Sentence

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By Michael Mitchell

Today, in the criminal case of United States v. Jenkins, an unpublished per curiam opinion, the Fourth Circuit affirmed the decision of the District Court for the District of South Carolina, upholding the defendant’s drug conviction and 170-month sentence.

Defendant Challenges Plea Bargain and Sentence

The Fourth Circuit considered the adequacy of the defendant’s plea hearing and the reasonableness of his sentence with regard to his immigration status.

Defendant Pled Guilty to Multiple Drug Charges

The defendant Raynard Allen Jenkins pled guilty to conspiracy to possess 280 grams of cocaine base and 500 grams of cocaine with the intent to distribute as well as possession of marijuana.  He was sentenced to 170 months in prison in accord with the Sentencing Guidelines, which provide for an enhanced sentence in certain drug-related convictions.

No Meritorious Grounds for Appeal

In accord with Anders v. California, the Court reviewed the entire record for any meritorious grounds for appeal and found none.  Thus, the court considered whether the defendant’s plea hearing and sentence were reasonable.

No Plain Error in Plea Bargain or Sentencing

The Fourth Circuit considered the adequacy of the defendant’s plea hearing by reviewing the record for plain error, holding that the district court substantially complied with Federal Rule of Criminal Procedure 11.  The court’s failure to alert the defendant of the potential issues with his immigration status as a result of his plea agreement did not affect his rights.  The Fourth Circuit also held that the defendant’s 170-month sentence was procedurally and substantively reasonable.

Fourth Circuit Affirms Conviction & Sentence

The Fourth Circuit affirmed the district’s court’s judgment upholding the defendant’s conviction for conspiracy to distribute cocaine and marijuana possession as well as his 170-month prison sentence.

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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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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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6Mar

Presentence Reports Insufficient to Attribute Drug Quantities in a Conspiracy

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By Lauren D. Emery

On March 3, 2015, in the published criminal opinion, U.S. v. Flores-Alvarado, the Fourth Circuit vacated and remanded for re-sentencing the district court’s conviction against Marco Antonia Flores-Alvarado’s (“Flores-Alvarad0”).  Flores-Alvarado had previously plead guilty to a charge for conspiracy to distribute 5 kilograms or more of cocaine and 1000 kilograms or more of marijuana–for which he was sentenced to life imprisonment– and possession with intent to distribute more than 100 kilograms of marijuana–for which he was sentenced to a concurrent term of 480 months.

Quantity of Drugs Seized in Conspiracy Attributed to Flores-Alvarado

Flores-Alvarado and his co-defendant ran two drug trafficking organizations in North Carolina and used multiple sources in Mexico and the U.S. for marijuana and cocaine.  Due to his involvement in a conspiracy with his co-defendant, Flores-Alvarado was credited with trafficking 31,111.16 kilograms of marijuana which was seized from homes in Stokesdale, North Carolina and Lexington, Kentucky.

Because of the amount of drugs seized, his presentence report (“PSR”) assigned him a base level offense of 38, which after adjusting for additional factors, became an offense level of 43.  As a result of this level, and his Category II criminal history, the advisory sentencing range for both of his crimes was life imprisonment–but since the maximum sentence for the possession charge for 40 years it became 480 months.  If the drug quantities involved in the two home seizures were excluded, his offense level would drop to 41 and his sentencing range to 360 months to life.  During the lower court proceedings, the “government did not call any witnesses or present any other evidence about the drug quantities or the Stokesdale and Lexington Seizures.”

Presentence Reports are not Suffiicnet Evidence of Quantity of Drugs Trafficked by Defendant

The Fourth Circuit held that the information contained in the PSR is insufficient in and of itself to attribute the seized quantities of marijuana to Flores-Alvarado.  Instead, additional evidence must be presented to allow the court to make that factual determination.

Attributing Drug Quantities in a Conspiracy Inolves Specific Evidentiary Requirement

The Fourth Circuit reviews factual determinations of a sentencing court for clear error.  Here, it held that the dispute over the drug amounts seized in Lexington and Stokesdale “were not mere quibbles over the PSR’s drug totals, but were specific and factually grounded enough to raise legal and factual questions about whether the event described in the PSR supported attributing the seized quantities to Flores-Alvarado.”  This factual issue was left unresolved by the district court.

The Fourth Circuit held that, in order to attribute the “acts of others in jointly-undertaken criminal activity” the State would need to prove the scope of Flores-Alvarado’s agreement to the conduct and the foreseeability of the conduct.  The court declared that the district court had failed to make any such findings regarding Flores-Alvarado’s agreement to jointly undertake this criminal activity and that the PSR alone is insufficient to attribute the amounts from the two seizures to him.

Sentence Vacated and Remanded for Re-Sentencing

On remand, the district court must make specific factual determinations regarding Flores-Alvarado’s “agreement to jointly undertake criminal activity and whether those drug quantities were reasonably foreseeable to Flores-Alvarado.”

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23Feb

Fourth Circuit Holds District Court’s Errors Were Harmless and Defendant Waived His Right to Appeal

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By Ashley Escoe

Today, in the criminal case of U.S. v. Bridgers, in an unpublished per curiam opinion, the Fourth Circuit held that any errors during Morris Edward Bridgers’ plea colloquy were harmless and that Bridgers waived his right to appeal his sentence.

Bridgers’ Guilty Plea at the Trial Court

Bridgers pled guilty to violating 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (2012): conspiracy to distribute heroin and possess heroin with intent to distribute. He was convicted and received a 200 month sentence. Bridgers alleged that the district court’s Fed. R. Crim. P. 11 hearing was inadequate and also that the district court’s explanation of his sentence was insufficient.

Plea Colloquy and Standard of Review

According to Fed. R. Crim. P. 11(b)(1), the trial court must conduct a plea colloquy to inform the defendant of, and make sure he understands, the nature of the charge to which he is pleading guilty, the minimum and maximum penalty he faces, and various rights he is surrendering by pleading guilty. The Court gives deference to the trial court’s decision and reviews the plea colloquy for plain error. U.S. v. General.

Any Omissions During the Plea Colloquy were Harmless Error

The Fourth Circuit affirmed Bridgers’ conviction for three reasons. First, the Fourth Circuit concluded that any omissions by the district court during the plea colloquy did not affect Bridgers’ substantial rights, because some of that information was in the written plea agreement Bridgers signed. Second, the Fourth Circuit decided that it was harmless for the district court to fail to advice Bridgers that it must order restitution, because Bridgers was informed he faced a maximum fine of $10,000,000. And finally, the Fourth Circuit determined that district court’s failure to explain the supervised release was harmless because Bridgers did not receive his potential maximum sentence.

Appellate Waiver and Standard of Review

If a defendant knowingly and intelligently waives his right to appeal, and then raises an issue for appeal that falls within the scope of the waiver, the Fourth Circuit will uphold the waiver. U.S. v Copeland. The Circuit court considers the totality of the circumstances when deciding whether the defendant knowingly and intelligently waived an appeal. U.S. v. General. The Court reviews the legitimacy of an appellate waiver de novo. U.S. v. Manigan.

Bridgers Knowingly and Intelligently Agreed to an Appellate Waiver

The Fourth Circuit concluded that Bridgers knowingly and voluntarily waived his right to appeal. The district court specifically discussed the waiver in the terms of the agreement to which Bridgers agreed. The language of the waiver is clear and unambiguous, and Bridgers confirmed that he could read and understand English and had opportunity to consult with his attorney.

Conviction Affirmed; Appeal Denied

The Fourth Circuit affirmed Bridgers’ conviction and dismissed the appeal of his sentence.

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11Feb

Prior Bad Acts Held Admissible to “Complete the Story”

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By Joshua P. Bussen

Yesterday, February 10, 2015, in the criminal case of United States v. McGee, in an unpublished opinion, the Fourth Circuit affirmed the decision of the District Court for the Northern District of West Virginia convicting the defendant, Michael McGee, of conspiracy to possess cocaine with intent to distribute.

 Defendant Cries Foul on Multiple Issues

McGee was convicted by a jury of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(b)(1)(C), 846 (2012). On appeal he claimed that: (1) the district court erred in admitting evidence pursuant to Federal Rule of Evidence 404(b); (2) there was insufficient evidence to convict him; (3) the district court violated McGee’s constitutional right to be present during discussion and formulation of a response to a jury question during deliberations; (4) the district court erred in designating McGee a career offender; and (5) the district court erred in applying a two-level enhancement to his sentence for obstruction of justice.

 Prior Bad Acts are Admissible to Complete the Story of McGee’s Conspiracy

McGee claimed that the district court violated Federal Rule of Evidence 404(b) by allowing presentation of evidence to the jury of five controlled buys in November 2012 by a government informant. He claimed the prosecution was using these previous bad acts to “pollute the waters” of his conspiracy charge, because the acts were too remote in time and geography to be relevant.

The Fourth Circuit first held that the prior bad act evidence was relevant because it tended to prove that McGee was in fact a part of an illegal conspiracy.  Fed. R. Evid. 401.  It then determined that the evidence was not barred by 404(b). Rule 404(b) prohibits the admission of “[e]vidence of a crime, wrong, or other act . . . to prove a person’s character in order to show that on a particular occasion the person acted in accord with the character.” The rationale for this rule is that the cards are already stacked against the defendant and juries are apt to punish defendants for their previous crimes. However, evidence of other bad acts may be introduced for another purpose, including if it concerns “acts intrinsic to the alleged crime.” Here, the Fourth Circuit held that the prior buys were necessary to complete the story and were necessary to prove the defendant was involved in a conspiracy, and thus did not run afoul Rule 404(b).  Finally, the court found that the probative value of this evidence was not “substantially outweighed by a danger of . . . unfair prejudice,” and was thus admissible.  Fed. R. Evid. 403.

There Was Sufficient Evidence to Convict McGee

McGee next claimed that the jury had insufficient evidence to convict him. Generally, “[t]he jury verdict must be sustained when there is substantial evidence in the record, when viewed in the light most favorable to the government, to support the conviction.” The Fourth Circuit dismissed this argument easily, finding that the record held ample evidence of the defendant’s, and his coconspirator’s, cocaine trade.

 McGee’s Absence During a Jury Question did not Constitute Reversible Error

The defendant next claimed that the district court violated his constitutional right to be present during discussion and formulation of a response to a jury question during deliberations. Federal Rule of Criminal Procedure 43 provides that a defendant has the right to be present at every stage of trial, including when the judge communicates with the jury. However, in this case, the Fourth Circuit found that although the defendant was absent during a portion of a discussion regarding a jury question, that he was not gone for long, that the court had the record read back to him and then continued with the bulk of the conversation in his presence, and that the defendant only raised the issue on appeal. Therefore there was no reversible error.

 McGee Was Properly Considered to be a “Career Offender,” Which Made the Two-Level Enhancement Irrelevant

Finally, McGee claimed that the district court committed reversible error in designating McGee as a career offender and also for applying a two-level sentencing enhancement for obstruction of justice. The Fourth Circuit found that the career offender designation warranted a higher punishment than the two-level enhancement, rendering the enhancement moot.

As to the career offender issue, the record showed that McGee had been arrested for aggravated robbery in 1989, and for drug trafficking in 2004 and 2009. The federal sentencing guidelines hold that “a defendant is a career offender if he was at least eighteen years old at the time of the instant offense, the instant offense is a drug felony or crime of violence, and the defendant has at least two prior felony convictions for drug offenses or crimes of violence.” McGee was older than eighteen at the time of this offense and each of his three prior convictions qualified for the higher sentencing guideline; therefore, the Fourth Circuit dismissed this claim as well.

Because the Fourth Circuit found no reversible error, the conviction of Michael McGee was affirmed.

 

 

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19Jan

Fourth Circuit Rules Information Obtained from Plea Agreement was Improperly Considered at Sentencing

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By Marcus Fields

Last Thursday, in United States v. Wells, the Fourth Circuit vacated the defendant’s sentence and remanded to a different judge for resentencing after finding that the Government breached a plea agreement by improperly using information provided by the defendant during a debriefing against him at his sentencing hearing.

Statements made by Defendant Pursuant to Plea Agreement were Used to Impeach Favorable Witness at Sentencing.

After being stopped with 2.17 grams of crack cocaine in his car, Derrick Wells entered into a plea agreement with the U.S. Government. Wells pleaded guilty to one count of possession with intent to distribute and “agreed to be completely forthright and truthful with law enforcement.” As part of a debriefing with law enforcement, Wells indicated that he was given the cocaine found in his car by his co-defendant Timothy Williams.  During sentencing, the government called Williams to testify to certain facts that would support enhancements to Wells’ sentence.  Williams “proved to be a hostile witness” and his testimony did not support the enhancements the government sought.  During examination the government used Wells’ statements from the debriefing in order to impeach Williams.

When Government Agrees to not Use Defendant’s Cooperation Against Him, it Shall Also not be Used at Sentencing.

U.S. Sentencing Guidelines Manual § 1B1.8(a) states: “Where a defendant agrees to cooperate with the government … [and] the government agrees that self incriminating information provided pursuant to the agreement will not be used against the defendant, then such information shall not be used in determining the applicable guideline range.”

Government Breached Plea Agreement by Using Information Obtained Pursuant to Agreement to Impeach Witness at Sentencing

The Fourth Circuit found that Wells was reasonable in expecting that, because of the plea agreement, statements he made implicating Williams would not be used to determine Wells’ sentence.  It also concluded that the government successfully impeached Williams in part by using the statements provided by Wells.  Williams’ testimony at sentencing was generally favorable to Wells, so the government’s use of Wells’ statements in order to impeach Williams impacted the sentence Wells received and thus constituted a breach of the Plea Agreement.

Conviction Affirmed but Sentence Vacated and Remanded.

Because the government breached its Plea Agreement with Wells, the Fourth Circuit vacated his sentence and remanded for resentencing. The Fourth Circuit also determined that the “original sentencing judge ‘cannot reasonably be expected to erase the [improper information] from his mind.’” For that reason, Fourth Circuit ordered the resentencing to be conducted before a different District Court judge.

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13Jan

Fourth Circuit Considers Fourth Amendment Rights of Parolees

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By: Caroline Daniel

In United States v. Hill, a published opinion released today, the Fourth Circuit considered how Fourth Amendment protections apply to citizens who are on supervised release.

Question About Conditions of Defendant’s Supervised Release

Defendant Eric Barker was serving a term of supervised release in February 2013.  As a condition of the release, Barker was required to notify his probation officer if he moved.  He was also required to allow his probation officer to visit any time, whether scheduled or unscheduled.  During the probation officer’s visit, the officer could “confiscate contraband in plain view.”

Based on a suspicion that Barker had moved without giving proper notification, officers obtained a warrant for his arrest and served it at his new residence.  Barker was present at the residence with two other persons (also on supervised release, and also defendants in this case).  The officers took all defendants into custody and performed an initial sweep of the home.  Upon seeing needles, cotton balls, and spoons in the bathroom of the home, the officers then used a drug-detection dog to search the apartment.  The dog led the officers to heroin, prescription pills, LSD, synthetic marijuana, and other paraphernalia.  After the dog and his handler walked through the home, the officers obtained a search warrant and seized the illegal items.

Fourth Circuit Considers Whether the Second Search Was Permissible

The defendants were charged with various drug offenses based on the contraband found in the residence.  Based on the Fourth Amendment, they filed motions to suppress any evidence found during the search.  The defendants claimed that the second search was illegal, as the officers failed to obtain a warrant until after the search was complete.  The district judge denied the motions, reasoning that by allowing his probation officer to visit him at any time, Barker had consented to any searches based on the visiting officer’s reasonable suspicions.

The Fourth Circuit considered whether the district court erred, and whether the scope of the Fourth Amendment as applied to persons on supervised release invalidated the second search as illegal.

Defendant Consented to Visits From Parole Officer, But Not Searches

Reviewing the motions de novo, the Fourth Circuit relied on a thirty-year-old decision, United States v. Bradley, to conclude that the search in question was illegal.  In Bradley, the Fourth Circuit held that when a parolee consented to unannounced visits by his parole officer, he was not completely giving up the rights afforded to him in the Fourth Amendment.  In both Bradley and the current case, the defendants had consented to visits from their parole officers, but not to any other searches.

Though the Fourth Circuit had considered similar issues in three more recent cases, the Court determined that none of these overruled the holding of Bradley.  Accordingly, the Court, reaffirmed Bradley’s holding, concluding that “a parole officer must secure a warrant prior to conducting a search of a parolee’s place of residence even where, as a condition of parole, the parolee has consented to periodic and unannounced visits by the parole officer.”

Search Illegal, But Question About Whether Evidence Admissible Still Lingers

The Fourth Circuit found both factual and legal errors in the district court’s analysis of whether the contraband seized could be admitted despite the illegality of the search.  The Court reversed and remanded the case for further proceedings consistent with the opinion.

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24Nov

Fourth Circuit Affirms 108-Month Sentence under Procedural & Substantive Reasonableness

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By Kelsey Kolb

Today, in United States v. Contee, the Fourth Circuit affirmed by unpublished per curiam opinion the District Court for the District of Maryland’s 108-month sentence for defendant Sean Bradford Contee. Pursuant to a plea agreement, Contee pled guilty to a violation of 18 U.S.C. § 846, conspiracy to distribute and possess with intent to distribute twenty-eight grams or more of cocaine base. Contee was sentenced to 108 months’ imprisonment, which was within the Guidelines of his crime. Although Contee did not assert any meritorious issues for appeal, he challenged his sentence on the grounds that the plea was not knowing and voluntary. In support of the challenge, Contee argued that he was denied access to discovery and that his plea was coerced through threats by counsel.

Was there an abuse of discretion in finding Contee’s guilty plea to be knowing and voluntary?

The Fourth Circuit reviewed the reasonableness—both procedural and substantive—of Contee’s sentence under an abuse-of-discretion standard. Ultimately, the court found no abuse of discretion on either of the reasonableness grounds.

The Sentence was Procedurally Reasonable.

To asses procedural reasonableness, the court considered whether the district court properly (1) calculated a sentence within the range provided by the Guidelines, (2) gave both parties an opportunity to argue for an appropriate sentence, (3) considered the factors of 18 U.S.C. § 3553(a) (2012), and (4) provided sufficient explanation for the sentence it rendered.

Under these four factors, the court found no abuse of discretion and determined that the sentence was procedurally reasonable.

The Sentence was Substantively Reasonable.

After finding procedural reasonableness of the sentence, the court considered substantive reasonableness. In accordance with United States v. Mendoza-Mendoza, the court first found the sentence to be presumptively reasonable in its substance. The defendant then had an opportunity to rebut the presumption by proving the sentence’s unreasonableness when measured against the § 3553(a) factors. The defendant failed to rebut the presumption. Thus, the court found no abuse of discretion and determined that the sentence was also substantively reasonable.

The Court affirmed Contee’s Sentence and Denied his Motion for Declaratory Judgment and Order.

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20Nov

Fourth Circuit Finds No Clear Error in Defendant’s 152-Month Sentence

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By: Steven M. Franklin

Today, in U.S. v. Hill, the Fourth Circuit found no clear error in the District Court for the Eastern District of Virginia’s decision to sentence Mr. Antoine Hill to 152 months in prison.

Defendant Appeals 152-Month Prison Sentence

Mr. Hill was originally sentenced to 300 months in prison. After finding that defense counsel provided ineffective assistance during his sentencing proceedings, the District Court ordered that Mr. Hill be resentenced. He was subsequently sentenced to 152 months in prison. Mr. Hill appealed this decision, arguing that it was clear error for the District Court to convert cash found in his apartment to drug weight, thus increasing his base offense level.

Fourth Circuit Reviews Factual Findings for Clear Error and Legal Conclusions De Novo

In reviewing a sentence, the Fourth Circuit must determine whether a district court committed a significant procedural error. Significant procedural errors may include an improper calculation of the Guidelines range or the selection of a sentence based on clearly erroneous facts.  In assessing whether a sentencing court has properly applied the Guidelines, the Fourth Circuit reviews factual findings for clear error and legal conclusions de novo.

Drug Weight Attributable to Mr. Hill Calculated Correctly

In calculating the drug weight attributable to a defendant, a district court may consider the drug equivalent of cash seized as relevant conduct. However, Mr. Hill asserted that the cash bundle on which the government relied should not have been converted to increase the drug weight attributed to him. The cash was found in a different room at his residence, and thus, Mr. Hill argued, it was too far away from where the drugs were discovered. He further insisted that he received the money from a personal injury settlement.

The Fourth Circuit Affirms

Unfortunately for Mr. Hill, the Fourth Circuit found no clear error in the District Court’s decision to include this cash bundle in the drug weight amount, and thus affirmed Mr. Hill’s 152-month sentence.

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20Nov

Distribution of Heroin Conviction and Sentence Affirmed

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By Evelyn Norton

Today in an unpublished opinion, United States v. Yancey, the Fourth Circuit affirmed a decision of the United States District Court for the Eastern District of North Carolina convicting and sentencing Mr. Tyrone Yancey to eighty-seven months in prison.  In district court, Mr. Yancey plead guilty to distributing heroin.  On appeal, Mr. Yancey challenged the adequacy of the hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure and the reasonableness of the sentence imposed.  The Government did not file a response.

The District Court Complied With Rule 11.

First, the Fourth Circuit reviewed Mr. Yancey’s Rule 11 hearing for plain error.  The Court found that the district court fully complied with Rule 11 in hearing Mr. Yancey’s plea.  As a result, Mr. Yancey’s plea was “knowing and voluntary, and, consequently, final and binding.”

The District Court Did Not Abuse its Discretion in Imposing Mr. Yancey’s Sentence.

Second, the Fourth Circuit reviewed Mr. Yancey’s sentence for reasonableness under an abuse of discretion standard.  The Court first reviewed the district court’s decision for procedural error, which would include improper Sentencing Guidelines range calculations.  However, the Court determined that the calculated range was proper.

Next, the Court reviewed the district court’s decision for substantive reasonableness.  The Court considered the totality of the circumstances and also whether the sentence was within the Sentencing Guidelines range.  The Fourth Circuit applied a presumption of reasonableness and found that the eighty-seven month sentence was within the properly calculated Sentencing Guidelines range.  Accordingly, the Court concluded that Mr. Yancey failed to rebut the presumption of reasonableness and the district court did not abuse its discretion in imposing Mr. Yancey’s sentence.

Conviction and Sentence Affirmed

The Fourth Circuit found that there are no meritorious issues for appeal and affirmed the district court’s conviction and sentence.

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