Wake Forest Law Review
24Feb

120 Months not Unreasonable for Heroin Distribution

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By Caroline E. Daniel

Today, in United States v. Thomas, an unpublished criminal opinion, the Fourth Circuit affirmed Defendant Demetrius Thomas’ (“Thomas”) conviction and sentence.

Thomas Questions Validity of plea and Length of Sentence

Thomas pled guilty to a violation of 21 U.S.C. § 841(a)(1) for distributing heroin, for which he was sentenced to 120 months.  He appealed, arguing that he did not enter into his guilty plea knowingly, that the sentence was unreasonable, and that his counsel had been ineffective.

Fourth Circuit Finds that Thomas Knowingly pled Guilty

Because he did not move to remove his guilty plea in district court, the Fourth Circuit reviewed Thomas’ guilty plea for plain error.  In reviewing the record, the Court determined that the district court had performed a proper plea colloquy, satisfying Rule 11.  The Court found that Thomas had been given the opportunity to give sworn statements, which reflected that his plea was “knowing, voluntary, and supported by a sufficient factual basis.”

Thomas’ Sentence was not Unreasonable

The Court reviewed both the procedural and substantive reasonableness of Thomas’ sentence under a “deferential abuse of discretion” standard.  The Fourth Circuit found that the lower court had satisfied both procedural and substantive requirements.

First, in terms of procedure, the Fourth Circuit held that the lower court had: (1) properly calculated Thomas’ sentencing range; (2) considered Thomas’ arguments for a lesser sentence; (3) considered the factors required by 18 U.S.C. § 3553(a); and (4) properly explained its analysis of those factors.  Next, the Fourth Circuit considered whether the sentence was substantively reasonable.  The Court explained that there is a presumption that a sentence within the Sentencing Guidelines range is reasonable, and that here, Thomas had not overcome that presumption.

Fourth Circuit Finds no Evidence of Ineffective Counsel

Finally, the Fourth Circuit found no evidence of ineffective counsel in the record.  The Court held that, even if counsel had been ineffective in some capacity, it would have been proper to raise this issue in a motion pursuant to 28 U.S.C. § 2255.  Thus, the Court dismissed this claim without merit.

Fourth Circuit Affirms both Verdict and Sentence

After analyzing each of Thomas’ concerns, the Fourth Circuit affirmed the district court’s decision.  Accordingly, Thomas was guilty of distributing heroin, and his sentence of 120 months stands.

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19Feb

Fourth Circuit Affirms Enhanced Sentence Under Armed Career Criminal Act

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By Michael Mitchell

Today, in the criminal case of United States v. Doe, 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 sentence for possession of a firearm by a convicted felon.

Defendant Challenges District Court’s “Armed Career Criminal” Determination

The Fourth Circuit considered whether the district court erroneously determined that the defendant had at least three prior convictions for burglaries committed on different occasions, which would warrant an enhanced sentence under the Armed Career Criminal Act (“ACCA”).

Enhanced Sentence for Repeat Offender

The district court sentenced the defendant Lawrence Doe, Jr. to 180 months in prison after he pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(1)(g) (2012). In order to qualify for the ACCA, the defendant must have the requisite number of prior convictions. For burglaries, the defendant must have at least three prior convictions from separate and distinct incidents in order to receive a longer prison sentence.

District Court Has Discretion to Determine Qualification

Under Almendarez-Torres v. United States, the district court can determine whether a defendant’s prior conviction qualifies for the ACCA.  This determination does not need to be submitted to a jury nor proven beyond a reasonable doubt in order to meet the requirements for an increased sentence.

Three Prior Convictions Within District Court’s Discretion

The defendant argued that his prior convictions did not occur on three separate occasions to fall within the scope of the ACCA under Descamps v. United States. However, the court held that Almendaraz-Torres overruled this exception, finding that the district court had the discretion to determine that the defendant’s prior convictions qualified for enhanced sentencing as an armed career criminal without submitting the issue to a jury. The government’s burden of proof is not a preponderance of the evidence rather than beyond a reasonable doubt. Nonetheless, the Fourth Circuit also found that the defendant had “at least three qualifying convictions that occurred on different occasions and arose out of separate and distinct criminal episodes” sufficient to warrant an enhanced sentence under the ACCA.

District Court’s Determination Affirmed by Fourth Circuit

The Fourth Circuit affirmed the district court’s judgment upholding the defendant’s conviction and 180-month sentence as an armed career criminal under the ACCA.

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18Feb

Fourth Circuit Affirms Reasonableness of Revocation Sentence

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By Patrick Southern

Today, in an unpublished per curiam opinion, the Fourth Circuit affirmed the revocation sentence imposed by the District of South Carolina in the case of United States v. Mayberry. The court held that the appropriate criminal sentencing guidelines were followed, and that the district court’s sentence was both procedurally and substantively reasonable.

Mayberry’s Counsel Argued the District Court Committed Procedural or Substantive Error in Sentencing

This case arose from the revocation of Kevin Mayberry’s supervised release for a prior crime. Upon that revocation, the District of South Carolina sentenced him to nine months in jail, followed by 27 additional months of supervised release.

While Mayberry did not take advantage of his opportunity to file a pro se supplemental brief, his counsel argued on appeal that the sentence violated standards for procedural and substantive reasonableness.

District Courts Have Broad Discretion When Imposing Sentences Upon Revocation of Supervised Release

The Fourth Circuit noted that revocation sentences are to be affirmed if they fall within the prescribed statutory range and are not “plainly unreasonable.” Broad discretion is afforded to the district court in tailoring such sentences.

On appeal, the court must first determine if the sentence imposed is procedurally or substantively unreasonable. It does so by applying the same considerations used in review of original sentences. Still, this is a deferential review compared to the reasonableness review for original sentences. The appellate court must first find the sentence unreasonable, then go further to determine if it is “plainly” so.

The Sentence Was Not Procedurally or Substantively Unreasonable

Supervised release revocation sentences are procedurally reasonable if the district court considered the Sentencing Guidelines policy statements found in Chapter Seven of the Guidelines, as well as the factors in 18 U.S.C. § 3553(a) which are relevant to revocation sentences.

The district court must provide a statement of reasons for the sentence imposed, but it need not be as detailed or specific for revocation sentences as for post-conviction sentences. The Fourth Circuit also noted that the district court doesn’t have to strictly follow the exact language of § 3553(a), but the reasons given for the sentence must merely be able to matched to a factor appropriate for consideration under that statute (and tied to the defendant’s situation).

Revocation sentences are considered substantively reasonable if the district court stated a proper basis for concluding the defendant should receive whatever sentence is imposed, up to the statutory maximum. Sentences within the properly-calculated policy statement range are presumed to be substantively reasonable.

Here, the District of South Carolina considered the proper advisory policy statement range and arguments from counsel and Mayberry before sentencing him at the top of the policy statement range. The Fourth Circuit indicated that even though the explanation given was not detailed or lengthy, it expressed the court’s opinion that Mayberry had abused the court’s prior leniency by neglecting his restitution obligation, and that a tough sentence was necessary to sanction his breach of trust.

Mayberry’s Sentence Is Affirmed

Because the Fourth Circuit could not find any unreasonableness, plain or otherwise, in Mayberry’s sentence, it was affirmed.

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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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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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11Feb

Weed Addiction Does Not Make Supervised Release Unreasonable

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By Andrew Kilpinen

Today, in an unpublished decision, the 4th Circuit affirmed a district court decision from the Western District of Virginia in U.S. v. Douglas Thomas, Jr.

 Mr. Thomas Sentenced to 5 Months in Prison and 4 Years Supervised Release

 The district court revoked Mr. Thomas’s supervised release for failing to comply with the terms of his release. Mr. Thomas was sentenced to an additional five months imprisonment and four years supervised release.

 Mr. Thomas Argued Impossible to Stop Smoking Marijuana

 The crux of Mr. Thomas’s appeal was that it was impossible for him to stop smoking marijuana. The terms of any supervised release includes not smoking marijuana. Therefore, according to Mr. Thomas, the district courts sentence including supervised release was substantively unreasonable.

 District Court’s Judgment Plainly Reasonable

 The Court was not persuaded that the sentence was substantively unreasonable. Pointing to the fact that Mr. Thomas failed to attend rehab during his supervised release, the Court found the district court’s decision to be “plainly reasonable.”

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10Feb

District Court Reasonable in Sentencing Defendant to Over Thirty-Seven Years

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By Chad M. Zimlich

Today, in the criminal case United States v. Lynch, an unpublished opinion, the Fourth Circuit dispensed with oral arguments, finding that a sentence departure and a reliance on an informant were not substantial errors by the district court.

Upward Variances and Confidential Informants

The issues presented to the Fourth Circuit by defendant Tremayne A. Lynch (a.k.a. “Paco”) were whether the District Court of the Eastern District of North Carolina was wrong in relying on the information of a confidential informant to prove Count One, conspiracy to possess cocaine base with intent to distribute, as well as wrong in using an upward variance in Count Two, discharging a firearm during and in relation to a drug trafficking crime.

Additionally, an issue arose as to whether Lynch’s challenge to the sentencing calculation in Count One was barred by his plea agreement.

Drug Dealing, Gunfire, and a Plea Deal

The facts of the case were fairly simple, as the defendant has entered into a plea agreement, with little left in dispute afterwards. Defendant Lynch pleaded guilty to conspiracy to possess and distribute cocaine base, as well as discharging a firearm during and in relation to a drug trafficking crime. In sentencing Lynch, the district court relied on information given by a confidential informant about the weight of the cocaine base that was possessed by Lynch. The district court applied an eight-level upward departure; a variance used when, due to the seriousness or cruelty of the crime, the court feels a longer sentence is justified. This resulted in a total sentence of 450 months; 240 months for Count One and 210 months for Count Two. Lynch then appealed.

Deference to the District Court’s Reasonable Findings

The standard of review in cases like these for sentencing is de novo, however the court’s fact-finding will be given great deference and will only be overturned if the Fourth Circuit finds there to be a clear error or abuse of discretion. The Fourth Circuit also reiterated that the district court is free to use any relevant information before it, including uncorroborated hearsay, when weighing determinations on fact-finding decisions.

Lynch Gets His Challenge, But Ultimately Fails On the Merits

The Government first contended that Lynch was unable to challenge the use of the information delivered by the confidential informant as Lynch’s plea agreement waived his right to appeal a within-Guidelines sentence. However, Lynch’s argument was that his overall sentence was in excess of the Guideline’s range, thus negating the waiver and allowing him to appeal. The Fourth Circuit agreed.

However, this did little to help Lynch, as the Fourth Circuit disagreed that the district court’s use of the informant was outside of the court’s discretion. As a district court is able to determine the reliability of information presented to it, the Fourth Circuit refused to disturb the determination as the Fourth Circuit was not convinced by the record that it was definite a mistake had been committed.

Furthermore, the Court denied that there was an error in applying an upward variance on Lynch’s sentence under Count Two. Because the variance would have been substantively reasonable in any case due to the “wanton cruelty of Lynch’s conduct,” any error that would have been committed was harmless.

Sentences Need Only Be Reasonable, District Court Has Discretion

The Fourth Circuit once again affirmed that a district court need only provide a reasoned basis for sentence variances, and deference will always be afforded for the fact-finding work of the district court.

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6Feb

Waiver of Right to Appeal Bars Fourth Circuit Review

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By Kaitlin Price

Today, in United States v. Watson, an unpublished opinion, the Fourth Circuit dismissed Watson’s appeal after holding that Watson effectively waived his right to appeal.

Underlying Facts

Watson plead guilty to four counts of bank robbery in violation of 18 U.S.C. § 2113(a) (2012), and possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g), 924(e) (2012). In exchange, Watson received five concurrent 235 month sentences.  On appeal, Watson contended that the district court erred in applying a threat of death enhancement in calculating the offense level applicable to one of his robbery counts and effectively rendering his sentence unreasonable. The Government responded to Watson’s appellate arguments by seeking to enforce the appellate waiver provision in his plea agreement. After some consideration, the Court sided with the Government and dismissed.   

Standard for Legal Waiver of Appellate Rights

In United States v. Amaya-Portillo the Fourth Circuit explained that a defendant can waive his right to appeal so long as “waiver is a result of a knowing and intelligent decision.” A judge is not required for the district court judge to ask the defendant about his understanding of the effects of his waiver of a right to appeal, but instead the court must assess the totality of the circumstances to determine if the defendant had the knowledge to make an intelligent decision. The Fourth Circuit in Unite States v. General explained that the defendant’s experiences, conduct, educational background and familiarity with plea agreements are all factors that can be used to determine if the waiver is valid. The Court was clear that as long as the issue appealed is within the scope of the waiver, it will be enforced.

Here, the Fourth Circuit held that Watson’s waiver was valid because his waiver was knowing and intelligent. Further, the sentencing issue Watson attempts to raise was within the scope of the waiver, therefore the Fourth Circuit dismissed Watson’s appeal.

 

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5Feb

Fourth Circuit Upholds Appellate Waiver in Plea Agreement

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By Michael Mitchell

Today, in the criminal case of United States v. Tagle, 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 drug conviction and sentence.

Defendant Alleges Ineffective Assistance of Counsel

The Fourth Circuit considered the defendant’s challenge to his 138-month sentence for a drug conviction resulting from a plea agreement. The defendant alleged ineffective assistance of counsel because his attorney did not object to his waiver of appeal to his sentencing length in the plea agreement.

Guilty Plea Waives Right to Appeal

Armando Jiminez Tagle pleaded guilty to conspiracy to possess fifty or more grams of methamphetamine with the intent to distribute. The defendant believed that his 138-month sentence should be shortened based on the time that he spent in state custody before being transferred to federal court. As a result, he alleged ineffective assistance of counsel and challenged his sentence.

“Knowing and Intelligent” Waiver of Right to Appeal

In a de novo appellate review, the Fourth Circuit considered whether the defendant’s waiver of his right to appeal his conviction and sentence was “knowing and intelligent.” Under United States v. Thornsbury, the court must evaluate the totality of the circumstances, “including the experience and the conduct of the accused, as well as the accused’s educational background and familiarity with the terms of the plea agreement.” The waiver is generally enforced as long as it is valid.

Standard of Review: Totality of the Circumstances

The Fourth Circuit found that the defendant “knowingly and intelligently waived his right to appeal his sentence in his plea agreement” based on a totality of the circumstances. The defendant’s challenge was within the scope of the valid and enforceable waiver.

Fourth Circuit Affirms Conviction & Sentence

The Fourth Circuit affirmed the district court’s judgment upholding the defendant’s conviction and 138-month sentence, dismissing the defendant’s challenge.

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3Feb

Circumstance-Specific Approach is Appropriate for Use in SORNA “Sex Offense” Analysis

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By Katharine Yale

Today, in the published, criminal opinion U.S. v. Price, the Fourth Circuit held that the circumstance-specific approach is the appropriate approach for analysis of whether an offense qualifies as a sex offense under the Sex Offender Registration and Notification Act (“SORNA”).  The court also reinforced its previous holding in U.S. v. Collins that failure to register as a sex offender under SORNA does not qualify as a sex offense for use with the advisory Sentencing Guidelines.

Defendant’s Prior Conviction and Background of the Case

Antwain Guanterio Price (“Price”) was charged on May 13, 2010 with a single count of criminal sexual conduct with a minor. The indictment alleged that he had committed a sexual battery on a victim who was 12 years old. After plea negotiations, Price was convicted in South Carolina for the common law offense, and lesser charge, of assault and battery of a high and aggravated nature (“ABHAN”).  As a result of this conviction, Price was required to register as a sex offender under SORNA. Upon failure to re-register after moving, Price was charged in May 2012 for knowingly failing to register under SORNA.

Price made a motion to dismiss the indictment on the ground that the ABHAN offense is not a “sex offense” under SORNA. The district court denied his motion.  After the denial, Price pleaded guilty to the failure to register charge and was sentenced to two years in prison, followed by a life term of supervised release.

SORNA’s Registration Requirement and Determination of Whether an Offense Satisfies the Statutory Definition of “Sex Offense”

In order for a defendant to be required to register under SORNA, the individual must be convicted of a sex offense. After conviction, if that person fails to properly register, then that individual has violated the act.   In such a case, courts must first determine whether a defendant’s underlying conviction is for a sex offense as defined by SORNA.

The Supreme Court uses three analytical frameworks in determining the nature of an underlying offense. Those frameworks are the categorical approach, the modified categorical approach, and the circumstance-specific approach.   The first two approaches focus on the elements of the offense, rather than specific facts. The circumstance-specific approach, conversely, focuses on the facts relating to the prior conviction.

The District Court did not Err in Applying the Circumstance-Specific Approach to its Assessment of Whether Price’s ABHAN Offense is a Sex Offense Under SORNA

The denial of Price’s motion to dismiss turned on whether his ABHAN offense was a sex offense as defined by SORNA. Because that question is a matter of law, the Fourth Circuit reviewed, de novo, the appropriateness of the circumstance-specific approach employed by the district court. The applicable sections of SORNA, 42 U.S.C. § 16911(5)(a) and § 16911(7)(I), define a “sex offense” as a criminal offense that involves “[a]ny conduct that by its nature is a sex offense against a minor.”

Using statutory construction principles, the Fourth Circuit determined that Congress intended for the circumstance-specific approach to be applied to an analysis of whether an offense is a sex offense under SORNA.   The Supreme Court in Nijhawan v. Holder determined that when a statute contains “language . . . that refers to specific circumstances” or conduct, Congress intended to allow the circumstance-specific approach that entails a more searching factual inquiry.

Here, the SORNA statute, in some subsections, specifically references the elements of the requisite offense, including one element that must involve “a sexual act or sexual conduct with another.” However, language regarding the elements of the offense do not appear in the subsections that define “sex offense.” The omission of any reference to “elements” suggests that Congress intended the “sex offense” defining subsections to cover a broader range of prior offenses.   The sex offense defining subsection also refers to “conduct” and to how the crime was committed. For that reason, the text of the statute suggests that Congress intended the circumstance-specific approach for use in analyzing whether an offense is a sex offense.

The purpose of the statute further indicates Congress’ intent that the circumstance-specific approach apply. Through SORNA, Congress sought “to protect the public from sex offenders and offenders against children.” The focus on children, coupled with the broad language used in defining “sex offense” for minor victims, illustrates Congress’ intent that the circumstance-specific approach apply.

Last, the Fourth Circuit dismissed Price’s argument that the sixth amendment requires the use of the categorical approach in determining whether an offense is a sex offense under SORNA. The court found that the sixth amendment did not require the categorical approach because had Price gone to trial, a jury would have had to find, beyond a reasonable doubt, that his prior offense was a sex offense. When Price pled guilty, he relinquished not only a fair trial, but also his right to a jury trial. Therefore, the categorical approach is not required in an analysis of 42 U.S.C. § 16911(7)(I).

The District Court Erred in Calculation of Price’s Supervised Release Sentence

Price also argued that the district court erred in its calculation of his advisory sentence guidelines sentence range as applied to his supervised release. A term of supervised release may be up to life, if the offense is a sex offense. Additionally, the “term of supervised release imposed shall not be less than any statutorily required term of supervised release.” In this case, the supervised release required by the applicable statute was a term of five years to life. Thus, the minimum advisory Guidelines term was set by the statute at five years.   Next, the court determined that Price’s offense was a sex offense and calculated the maximum term of the advisory range to be life.   Price made no objections to this range, which was set forth in the presentence report. If he complied with the conditions of release, he could seek to terminate the supervision after five years.

Price argued that failing to register as a sex offender is not a “sex offense” under the advisory Guidelines provision used in his sentencing.   In United States v. Collins, the Fourth Circuit held that effective November 1, 2014, failing to register as a sex offender is not a sex offense for the purposes of the advisory Guidelines. Thus, under a plain error review, the district court did err in considering Price’s offense as a sex offense and Price was not subject to the enhanced Guidelines range.

Further, the court pointed out that a clarifying amendment to the Guidelines established that the Guidelines “range” is actually only a single point in instances when the statutory minimum term of supervised release is greater than the Guidelines minimum. In other words, the advisory term of supervised release is really a single point fixed at the statutory minimum. Therefore, Price’s Guidelines range of supervised release should only have been five years.

The Fourth Circuit Affirmed Price’s Conviction for Failing to Register Under SORNA, Vacated Price’s Supervised Release Sentence, and Remanded For Resentencing on the Supervised Release Question

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23Jan

Fourth Circuit Affirms Sentencing Despite District Court’s Reference to Rehabilitation

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By Kaitlin Price

Today, in the criminal case of United States v. Lemon, a published opinion, the Fourth Circuit held that the district court did not plainly err when it discussed Lemon’s rehabilitative needs during its sentencing procedure. The Court affirmed the district court’s twenty-four month prison sentence for Lemon’s violations of her supervised release.

District Court’s Sentencing Proceeding

In 2008, Cynthia Lemon plead guilty to conspiracy to defraud the United States by making, uttering and possessing forged securities and was sentenced to thirty months in prison and three years of supervised release.  In February 2013, Lemon began her supervised release term and five months later was arrested for multiple violations of her supervision, including several forged checks.

The Supervised Release Violation Report recommended twenty to twenty-four months imprisonment based upon the nature of the violations and the sentencing guidelines. Lemon’s parole officer recommended a twenty-four month imprisonment sentence. At the revocation hearing, the district court adopted the Government’s recommendation of a sentence within the Guidelines range and sentenced Lemon to twenty-four months in prison. In addition to discussing the reasons for the issued sentence the district court also commented on Lemon’s mental health.

Lemon appealed alleging that the district court erred in considering her rehabilitative needs in determining the length of her sentence.

Standard of Review

Lemon did not raise this issue at the revocation hearing; therefore, the Fourth Circuit reviewed the sentencing for plain error. To prevail Lemon needed to establish “an error (1) was made, (2) is plain (i.e. clear or obvious), and (3) affects substantial rights.” United States v. Lynn. Even if Lemon established the required elements, the Court may exercise its discretion to correct the error based upon whether the error seriously affects the fairness of the proceeding.

Tapia v. United States and the Impermissible Use of Rehabilitative Needs in Criminal Sentencing

On appeal Lemon claimed that the district court violated the Tapia rule. In Tapia v. United States the Supreme Court held that the Sentencing Reform Act prohibits federal courts from imposing prison terms “to promote a criminal defendant’s rehabilitation.” The Supreme Court explained that “[a] court commits no error by discussing the opportunities for rehabilitation within prison” but a court cannot “impose or lengthen a prison sentence to enable an offender to compete a treatment program.” The district court in Tapia v. United States stated that “the sentence has to be sufficient to provide needed correctional treatment,” which is an impermissible consideration on the part of the district court.

In applying the Tapia v. United States holding, the Fourth Circuit has determined that courts are permitted to consider rehabilitation so long as the court is not imposing or lengthening a sentence to further rehabilitation. The Fourth Circuit has also held that the Tapia rule applies to revocation sentences.

In United States v. Alston the Fourth Circuit held that the district court’s comment that the defendant’s sentence would “provide the needed treatment of care in the most effective manner possible,” did not violate the Tapia rule because the comments only suggested the court was aware of the rehabilitative benefits of the sentence, not that the court chose the sentence based upon those benefits. On the other hand, in United States v. Bennett the Fourth Circuit held the district court did violate Tapia when it stated that the defendant “needs intensive substance abuse treatment. So, the court will impose a sentence that provides ample time for that.”

Based upon the Supreme Court’s holding in Tapia v. United States, the Fourth Circuit’s precedent, and the precedent in sister Circuits, the Fourth Circuit found that “it is unlikely that a court has committed Tapia error unless it has considered rehabilitation for the specific purpose of imposing or lengthening a prison sentence.”

The District Court’s Sentencing of Lemon Did Not Commit a Tapia Error

The Fourth Circuit held that the district court did not err when it discussed Lemon’s mental state during the sentencing proceeding. First, the district court never made any indication that its concern for Lemon’s mental health was a factor in determining the length of her sentence. Further, the court specifically stated it did not even know if she would receive mental health treatment, suggesting it did not impose Lemon’s sentencing based upon rehabilitation.

Finally, the district court provided an independent rationale for Lemon’s sentencing that had nothing to do with the possibility of Lemon receiving treatment. The district court specifically stated that because Lemon had continued to re-offend there was a “need to protect the public from further crimes.”

Practical Advice to Avoid Confusion Regarding a Tapia Error

The Fourth Circuit advised that to eliminate any question as to whether a Tapia error occurred, district courts should separate any discussion regarding rehabilitative needs from its discussion of the factors that influenced the sentencing.

District Court Sentencing Affirmed

The Fourth Circuit affirmed the district court’s twenty-four month sentence because the court did not wrongfully consider rehabilitation in its sentencing decision.

 

 

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22Jan

Fourth Circuit Upholds Conviction and Mandatory Consecutive Sentencing Under 18 U.S.C. § 924(j)

Categories: 4th Cir. Blog
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By Carson Smith

Today, in the criminal case United States v. Bran, the Fourth Circuit affirmed the Eastern District of Virginia, upholding both the conviction of Jose Armando Bran for conspiracy to commit murder and the district court’s interpretation of federal sentencing guidelines under 18 U.S.C. § 924(j).

Defendant Contends Trial Court Erred in Upholding His Conviction for Conspiracy to Commit Murder and Erred in Imposing a Mandatory Consecutive Sentence for the Conviction

Bran raised the following two issues on appeal: (1) the jury verdict was insufficient to convict on conspiracy to commit murder under § 924(j); and (2) the trial court erred in imposing a mandatory consecutive sentence for the conviction under § 924(j).

Defendant Was Convicted on Three Counts Related to the Murder of Osbin Hernandez-Gonzalez 

At trial, the government argued that Bran was the leader of Richmond Sailors Set, a violent sect of the MS-13 gang. The evidence established that in July 2011, Bran ordered two prospective members, Jeremy Soto and Luis Cabello, to kill Hernandez-Gonzalez as part of their initiation. Bran provided Soto and Cabello with a firearm to commit the murder and also ordered a current member, Michael Arevalo, to ensure that the murder was carried out.

Based on the order, Soto and Cabello carried out the murder, shooting Arevalo four times and leaving him to die by the James River. While Bran provided Soto and Cabello with a murder weapon, the firearm proved faulty. Instead, Soto and Cabello used Arevalo’s firearm to carry out the murder.

Bran was charged and convicted of three felonies for his role in the murder: (1) conspiracy to commit murder in aid of racketeering; (2) murder in aid of racketeering; and (3) use of a firearm during a crime of violence causing death to another. He was sentenced to 120 months for Count 1, mandatory life for Count 2, and life for Count 3. The trial judge ordered the life sentence for Count 3 to run consecutively with the other parts of the sentence.

The jury was given several instructions with regards to Count 3 under § 924(j). The jury was asked to fill out a three-part special interrogatory if they found Bran guilty. The interrogatory asked whether Bran aided, abetted, counseled, commanded, induced, or caused another to: (1) use a firearm during and in relation to a crime of violence; (2) carry a firearm during and in relation to a crime of violence; and/or (3) cause a firearm to be discharged during and in relation to a crime of violence. Even though the jury found him guilty of Count 3, the jury failed to find the second and third parts of the interrogatory beyond a reasonable doubt.

The Evidence at Trial Was Clearly Sufficient to Support Bran’s Conviction Under § 924(j)

Bran argued that the evidence at trial was not sufficient to support his conviction under § 924(j). While an appellate court reviews sufficiency of the evidence challenges de novo, a court need only find that there was enough substantial evidence at trial for a reasonable juror to find the defendant guilty of the charge.

In order to convict a defendant under § 924(j), the government must prove “(1) the use of a firearm to cause the death of a person and (2) the commission of a § 924(c) violation.” § 924(c) “prohibits the use or carrying of a firearm in relation to a crime of violence or drug trafficking crime . . .” Finally, 18 U.S.C. § 2 provides that a person “is punishable as a principal” if the person (a) “aids, abets, counsels, commands, induces or procures” the commission of a criminal offense; or (b) “willfully causes an act to be done which if directly performed by him or another” would be a criminal offense.” Pursuant to 18 U.S.C. § 2, Bran was charged as the principal for both the § 924(c) and § 924(j) violations.

The Fourth Circuit held that the trial court did not err in convicting Bran under § 924(j). The evidence at trial was clearly sufficient to find that Bran aided and abetted the murder of Hernandez-Gonzalez through the use of a firearm. While Bran ostensibly claimed that the evidence did not support the conviction, the bulk of his argument focused on the juries failure to find all three of the special interrogatories. However, the Fourth Circuit emphasized that the jury found Bran guilty on the general verdict form and found that he “caused a firearm to be discharged.” The “caused” language should be interpreted broadly to encompass “use of a firearm” under 924(j). Therefore, the conviction was affirmed.

The Trial Court Did Not Err in Applying a Mandatory Consecutive Sentence for the § 924(j) Conviction

Bran argued that the trial court erred in applying a mandatory consecutive sentence for the § 924(j) conviction. Bran argued that sentencing under § 924(j) should be left up to the discretion of the judge. This issue was reviewed de novo.

According to the majority, the relation between § 924(c) and § 924(j) requires that the latter be interpreted to require mandatory consecutive sentencing. Because § 924(j) is separated out from § 924(c), Congress must have intended for § 924(j) to be given the effect of enhancing the sentence imposed by conviction under § 924(c). To interpret the statute otherwise would lead to the conclusion that a person with a § 924(c) conviction which resulted in murder could face a more lenient sentencing scheme than if the murder never occurred. The majority also emphasized that of the five circuits to have been presented with this issue, four have held that § 924(j) requires mandatory consecutive sentencing. For these reasons, the majority affirmed the trial court’s decision.

The dissent disagreed with the majority primarily on two points. First, the dissent argued that § 924(j) is discrete from § 924(c). Thus, the express statutory mandate of § 924(c) should not be applied to § 924(j). Second, Congress enacted § 924(j) so that prosecutors could “extend the death penalty to second-degree murders.” The power to impose the death penalty does not result in a more lenient sentencing scheme. For these reasons, § 924(j) should not be interpreted as requiring mandatory consecutive sentencing.

Fourth Circuit Affirmed the Conviction and Sentencing of the Trial Court

Accordingly, the Fourth Circuit upheld the trial court’s conviction of Bran under § 924(j) and the trial court’s interpretation of § 924(j) as requiring mandatory consecutive sentencing.

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