Wake Forest Law Review
30Mar

Mandate Rule Bars 4th Amendment Claim on Appeal

Categories: 4th Cir. Blog
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By Dan Menken

Today, in the unpublished opinion of United States v. Hawkins, the Fourth Circuit affirmed the conviction of Collin Hawkins for being a felon in possession of a firearm.  Hawkins was sentenced to 63 months’ imprisonment and two years of supervised release.

Hawkins Participated in Carjacking

On November 22, 2006, the Defendant participated in the carjacking and robbery of a Baltimore taxi driver.  When the Defendant was arrested, the arresting officer witnessed the Defendant reach for his waistband and subsequently discovered a firearm.  The Defendant was initially convicted of (1) carjacking, (2) possessing and brandishing a firearm in furtherance of a crime of violence, and (3) being a felon in possession of a firearm.  He was sentenced to 360 months’ imprisonment.  On appeal, the Fourth Circuit reversed the Defendant’s convictions on the first two counts because they were improperly joined to the third count.  On remand, the government elected not to retry the first two counts, and the Defendant was eventually sentenced to 63 months’ imprisonment.

On appeal, Hawkins argued that the gun underpinning his conviction should have been suppressed because the search and seizure violated the Fourth Amendment.  Additionally, Hawkins argued that he had ineffective assistance of counsel.

Mandate Rule Bars Fourth Amendment Appeal 

The Fourth Circuit looked to whether the mandate rule precluded the Defendant from raising the Fourth Amendment claim.  The mandate rule generally bars litigation of issues that could have been, but were not, raised before remand.  Exceptions to the mandate rule include circumstances where (1) a litigant can demonstrate that the legal landscape has dramatically changed, (2) significant new evidence has come to light, or (3) a “blatant error in the prior decision will, if uncorrected, result in a serious injustice.”  United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993).

The Fourth Circuit concluded that the error here was not blatant.  The Fourth Circuit and other circuits have determined that grabbing, touching, or securing a waistband may be evidence of the possession of a firearm when considering the totality of the circumstances.  Because the Defendant waived his Fourth Amendment claim by not raising it on his first appeal and no exception applied, the Fourth Circuit concluded that the mandate rule barred his Fourth Amendment claim.

Ineffective Counsel Claim Fails

Additionally, the Defendant asserted that his appellate counsel was ineffective for failing to raise his Fourth Amendment claim previously.  To raise a cognizable ineffective assistance of counsel claim, a Defendant must demonstrate that (1) his appellate counsel was deficient and (2) he suffered prejudice as a direct result of this deficiency. Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc).

The Court noted that the law presumes effective assistance.  In order to overcome that presumption, the Defendant must show that their appellate counsel ignored clearly strong arguments on appeal.  Based on the success of the Defendant’s counsel in reducing Defendant’s sentence on the previous appeal, the Fourth Circuit concluded that the Defendant’s ineffective counsel claim failed.

Affirmed

The Fourth Circuit affirmed the judgment of the district court and upheld Hawkins’ sentence.

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23Feb

Court Rules Defendant Cannot Appeal Plea Agreement

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By Dan Menken

Today, in United States v. Loftis, an unpublished opinion, the Fourth Circuit upheld Scottie Allen Loftis’ sentence of 120 months’ imprisonment for possession of stolen firearms.

Loftis Pled Guilty to Possession of Stolen Firearms

Loftis pled guilty to possession of stolen firearms, in violation of 18 U.S.C. § 922(j), and was sentenced to the agreed upon 120 months’ imprisonment.  Loftis filed a pro se supplemental brief, challenging his conviction and sentence and raising claims of ineffective assistance of counsel and prosecutorial misconduct.

Absent Failure to Comply with Federal Rule of Criminal Procedure 11, Loftis’ Sentence Not Appealable

Under plain error review, the Fourth Circuit found that the district court substantially complied with Federal Rule of Criminal Procedure 11 by ensuring that Loftis understood the import of his binding plea agreement.

The Court next turned to Rule 11(c)(1)(C), which states that subject to narrow exceptions, a defendant may not appeal an agreed upon sentence.  Because none of the exceptions were applicable and the sentence was not based on an incorrect application of the Sentencing Guidelines, the agreement between Loftis and the Government was appropriate.  Thus, the Fourth Circuit held that it did not have jurisdiction to review Loftis’ sentence.

Ineffective Assistance Claims Not Generally Addressed on Direct Appeal

Loftis further argued that his counsel rendered ineffective assistance by forcing him to plead guilty and by advising him to enter into the binding plea agreement.  The Fourth Circuit noted that unless an attorney’s ineffectiveness conclusively appears on the face of the record, a defendant would need to raise such a claim in a motion brought pursuant to 28 U.S.C. § 2255.  In Loftis’ case, the record did not conclusively establish ineffective assistance, and, therefore, the Fourth Circuit concluded that Loftis must address his claims in a § 2255 motion.

No Evidence of Prosecutorial Misconduct

The Fourth Circuit further held that the record did not support Loftis’ claim that the prosecutor conspired with counsel to force Loftis’ guilty plea.

Loftis’ Conviction Affirmed

Thus, after reviewing the entire record, the Fourth Circuit concluded that there was no meritorious grounds for appeal and affirmed Loftis’ conviction.

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21Oct

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

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By Chad M. Zimlich

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

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

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

Defendant’s Possession of a Stolen Firearm

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

The District Court Has Broad Discretion in Sentencing

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

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

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

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

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

Sentence Was Reasonable, There Was No Abuse of Discretion

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

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