Wake Forest Law Review
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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14Jan

Fourth Circuit Affirms—”Insanity” Proceeding to be Delayed Until 2019

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By Joshua P. Bussen

Yesterday, in United States v. Conrad—a published opinion—the Fourth Circuit affirmed a decision by the Western District of Virginia to deny a motion to dismiss commitment proceedings. The defendant, Samuel Robert Conrad III, appealed the district court’s denial of his motion to dismiss commitment proceedings arising from a 2007 insanity acquittal of a separate set of offenses, as well as the district court’s order to delay those proceedings until he is released from prison.

Problems Addressed by the Court

On appeal, Mr. Conrad raised two issues. First, he claims that the district court was incorrect in denying his motion to dismiss proceedings that would determine if he should be committed to a mental institution. Second, he asserts that the district court did not have the authority to delay the proceedings until after he finishes serving almost a decade long prison sentence.

The Circumstances of Mr. Conrad’s Incarceration

In 2006 Samuel Conrad was indicted for unlawful use of controlled substances, possession of a firearm by a convicted felon, and possession of an unregistered sawed­-off shotgun. Mr. Conrad was found not guilty for reason of insanity and was released on a conditional basis because the court found that he posed no threat to the public. In 2008 Mr. Conrad was charged with murder for beating a relative to death. He plead guilty to voluntary manslaughter—receiving a sentence of four years and seven months imprisonment, and revocation of his conditional release for the 2006 crimes. Mr. Conrad appealed the revocation of his conditional release, successfully, as the only two remedies that were proper under the applicable statute were unconditional release or indefinite commitment. This successful appeal returned the defendant’s status to that of before he was originally conditionally released. Therefore, Mr. Conrad was required to submit to a new hearing under 18 U.S.C. § 4243 to determine his “dangerousness,” and whether he should be unconditionally released or indefinitely committed. While this hearing was still pending the defendant plead guilty to possession of a firearm by a felon and received eight years in prison. Because Appellant was in custody and therefore could not be released through a § 4243 hearing, the district court chose to wait for Mr. Conrad’s release before conducting the sanity hearing. This appeal followed.

The Law—18 U.S.C. § 4243

The statute that was the issue of appeal in this case is 18 U.S.C. § 4243.  Under § 4243, a defendant that sustains a verdict of not guilty by reason of insanity shall submit to a hearing to determine if he is dangerous to the public.  Subsection (b) requires that the hearing be conducted within forty days of the not guilty by reason of insanity verdict.

Why the Fourth Circuit Affirmed

Mr. Conrad argued that because he would be spending the next eight years in prison that he did not pose a threat to the public and that the pending commitment hearing should be dismissed.  The Fourth Circuit disagreed, finding that the delay of the commitment hearing until after the defendant’s release was proper because it would be consistent with the intent of the statute and the defendant—through his wrongdoing—brought about the delay.  The court found that § 4243 was created to protect the public, and that delaying the commitment hearing served that purpose.  It also held that it would be inequitable to allow the defendant to escape the hearing by his own subsequent wrongdoing that landed him in prison.

The Fourth Circuit’s Determination

The Fourth Circuit concluded that Mr. Conrad should not be allowed to eradicate the statute’s intent by committing subsequent offenses and that delaying the hearing until he is released from prison is consistent with the statutory framework of § 4243.

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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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18Nov

Vacant Rental Property Involved in Interstate Commerce

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By: Dan Menken

Today, in United States v. White, the Fourth Circuit affirmed the conviction of Michael L. White for conspiracy to commit arson and mail fraud; aiding and abetting arson; and accessory after the facto arson. On appeal, White raised two challenges to the sufficiency of the evidence. First, White argued that the government failed to establish the nexus to interstate commerce required to sustain the arson-related convictions. Second, he claimed that the evidence was insufficient to establish that he assisted a co-conspirator in evading apprehension and punishment as required for accessory-after-the-fact conviction. Additionally, White challenged his sentence, arguing that the district court used an inflated base offense level as a result of the court’s erroneous determination that the duplex qualified as a “dwelling” under the United States Sentencing Guidelines Manual. Each of these arguments was rejected by the Court.

Defendant Accused of Burning Duplex to Recover Insurance Proceeds

White, who was struggling financially, had become increasingly irritated that the tenants of his duplex were not paying their rent. In June 2009, White purchased a fire-insurance policy to cover the duplex “as a two-family tenant-occupied” rental property. The policy provided $80,000 coverage for the duplex and $20,000 for its contents. Later that summer he offered $4,000 to his neighbors, Doug and Kim Kinder, to burn down the property. The Kinders agreed and set fire to the property on October 16, 2009.

In June 2010, Kim Kinder was contacted by the West Virginia State Police. She confessed to her involvement in the arson and agreed to cooperate with the police. Kinder made a recorded telephone call to White, in which White did not deny his involvement in the arson. When White was subsequently interviewed by police, he stated that Kinder had confessed to having started the fire. Testifying at trial, White denied knowledge of or involvement in the burning of the duplex.

 Was There Sufficient Evidence to Establish the Interstate Commerce Element?

Under 18 U.S.C. § 844(i), it is unlawful to “maliciously damage[ ] or destroy[ ], or attempt[ ] to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” In Russell v. United States (1985), the Supreme Court held that the arson of a two-unit apartment building that was used as rental property fell within the purview of 18 U.S.C. § 844(i). In that case, the Court concluded that the property was “being used in an activity affecting commerce” because the apartments in the building were rented to tenants at the time of the fire.

White’s appeal raised the issue of whether a rental house can still be classified as an activity affecting commerce if the tenants vacated before the fire was set. In United States v. Parsons (1993), the Fourth Circuit concluded that a rental property qualified as being involved in interstate commerce despite being vacant for two months at the time of the fire. There, the Court determined that there was sufficient evidence that the house was a rental property at the time of the fire because (1) the house was insured as rental property at the time of the fire, and (2) having found that the defendant commissioned the fire, the jury could also have reasonably inferred that the defendant never intended to take the house of the rental market.

Thus, applying Parsons, the Fourth Circuit concluded that there was sufficient evidence to support the conclusion that the duplex was being used in interstate commerce.

Was There Sufficient Evidence to Support a Conviction for Accessory After the Fact to Arson?

In order to prove accessory after the fact under 18 U.S.C. § 3, the government must demonstrate “(1) the commission of an underlying offense against the United States; (2) the defendant’s knowledge of that offense; and (3) assistance by the defendant in order to prevent the apprehension, trial, or punishment of the offender.” The government charged that this occurred when he knowingly made a false and misleading statement to an insurance representative for the purpose of helping Kinder and himself avoid apprehension. White contended that his statement to the insurance agent was nothing more than a passing comment to an insurance representative who was not connected to law enforcement.

All the evidence must show is that White acted “in order to prevent the apprehension” of Kinder and himself. The Fourth Circuit held that the only logical purpose for White to attempt misdirection in his interview with the insurance agent was to ensure the Kinder would not fall under police scrutiny.

Was the Duplex a “Dwelling” for Sentencing Purposes?

White argued that the duplex was no longer a “dwelling” at the time of the fire because it was vacant. A “dwelling” is a “house or other structure in which a person or persons live,” including “the apartment or building . . . occupied by a family as a place of residence.” The Court pointed out that there was no indication that the duplex had ever functioned or would ever function as anything other than a dwelling. The fact that the duplex still had power and was in habitable condition pointed to the fact that it should be considered a “dwelling.”

Dissent: Cannot Be Both Principal and Accessory After the Fact

The dissenting Judge argued that the law does not allow White to be both responsible as a principal for the arson and also as an accessory by assisting himself and Kinder after the fact. Although Defendant did not preserve this error, the Judge believed that this issue cleared any plain error hurdle.

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13Nov

Enhanced Child Pornography Sentence Survives Constitutional Challenge

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By Michael Mitchell

Does Increased Sentencing for Crime Against “Vulnerable Victims” Violate the Eighth Amendment’s Prohibition of Cruel and Unusual Punishment?

Today, in United States v. Dowell, the Fourth Circuit considered whether the district court’s increased sentence for the Defendant under the “vulnerable victim” standard was appropriate when an upward adjustment was already made based on his victim’s young age.

Child Pornography Conviction Results in “Upward Adjustment” Sentencing

Defendant John Dowell pled guilty to twelve counts of production of child pornography and one count of transportation of child pornography after he recorded himself in various stages of sexual contact with two girls under five.  Dowell stored more than 70,000 pornographic images and videos on his computer, three-fourths of which involved children, and posted many of them to the Internet through various websites.

After a lengthy sentencing hearing, the district court sentenced Dowell to 960 months in prison.  The court heard expert testimony from a psychologist, who testified that Dowell was a pedophile, “sexually attracted to females, nonexclusive type” (adults and children).  Although the psychologist testified that Dowell is unlikely to be a repeat offender, he acknowledged that pedophilia is a chronic condition “that is unlikely to go away as [he] ages.

Based on Dowell’s Pre-Sentence Report, the district court allowed enhanced sentencing for “engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor” and “engag[ing] in a pattern of activity involving prohibited sexual conduct.”  The court relied on “the well established principle that double counting is authorized” unless specifically prohibited in applying the harsher sentencing.  Dowell has challenged the district court’s use of this “vulnerable victim” enhancement.

Eighth Amendment Challenge over Proportionality of Sentencing

 The court considered the constitutionality of the Defendant’s enhanced sentencing in light of the Eighth Amendment’s prohibition of cruel and unusual punishment.  Specifically, the court reviewed whether the sentencing was proportional under the Eighth Amendment.  Defendants bringing a constitutional claim must assert either an “applied-as” challenge, arguing that the sentence is disproportionate for the particular case, or a “categorical” challenge, asserting that “an entire class of sentences is disproportionate.”  Dowell has only raised an applied-as challenge to his sentence.

Defendant Fails to Substantiate As-Applied Constitutional Challenge

In a published opinion under de novo review, the Fourth Circuit relied on the “narrow proportionality principle,” adopted by the Supreme Court for as-applied challenges to the Eighth Amendment.   Strict proportionality is not required between the crime and the sentence.  Only “grossly disproportionate” sentences are forbidden by the Eighth Amendment, which is evaluated using a two-part test.  First, the court must determine “that a ‘threshold comparison’ of the gravity of the offense and the severity of the sentence “leads to an inference of gross proportionality.”  If this high burden is met, the court will then compare the challenger’s sentence with other offenses in that jurisdiction and sentences of similar offenses in other jurisdictions to establish that it constitutes cruel and unusual punishment.

Recently, the Fourth Circuit rejected a similar Eighth Amendment challenge of a lengthy sentence stemming from a child pornography conviction.  In United States v. Cobler, 748 F.3d 570, the court found that the defendant’s crime was “sufficiently egregious” to justify heightened sentencing based on the large quantity of child pornography and the risk that he posed to his victim.  Here, the court draws parallels to this 2008 case and rejects Dowell’s claims that the crime was nonviolent.  As a result, the court found that the Defendant’s sentence was not cruel and unusual punishment under the Eighth Amendment.

Fourth Circuit Affirms Harsher Sentencing In Spite of Harmless Error

The Fourth Circuit affirmed the Defendant’s 960-month sentence, finding that his sentence was proportional under the Eighth Amendment’s prohibition of cruel and unusual punishment and rejecting his claim that “double counting” is not permitted by the Sentencing Guidelines as a harmless error.

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13Nov

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

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By: Rolf Garcia-Gallont

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

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

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

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

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

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

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

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11Nov

Fourth Circuit Upholds Sentencing Enhancement in Conspiracy to Possess Counterfeit and Identity Theft Case

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By Taylor Ey

Last Friday, November 7th, the Fourth Circuit issued its opinion in United States v. Mendez affirming the sentencing decision of the District Court for the Middle District of North Carolina.

Appellants Mendez, Suarez, and Rodriguez pled guilty to conspiracy to possess counterfeit access devices. Appellant Mendez also pled guilty to aggravated identity theft.  Mendez was sentenced to fifty-four months’ imprisonment, Suarez to forty-six months’ imprisonment, and Rodriguez to thirty-seven months’ imprisonment.  Appellants appealed the district court’s decision, challenging the Sentencing Guidelines calculations and the substantive reasonableness of the sentences.

The District Court Did Not Abuse its Discretion When it Applied a Sentencing Enhancement

Appellants argue that the district court erred when it applied the two-level enhancement for sophisticated means.  When a defendant employs a complex or intricate offense, the sophisticated means enhancement may apply.   Because the appellants obtained nearly 200 stolen credit card account numbers and disguised fraudulent purchases through encoding stored-value cards with stolen account numbers, their scheme was sufficiently complex.

The District Court Did Not Commit Clear Error in Calculating Its Total Loss Figure

In stolen or counterfeit credit cards and access devices cases, special rules govern the calculations of loss.  The loss includes any unauthorized charges made with the counterfeit card or unauthorized access device, up to $500.  The district court did not err because it used the $500-per-device multiplier in accordance with Sentencing Guideline § 2B1.1 cmt. n.3(F)(i), which reflected the loss from the used cards and the reasonably foreseeable loss from unused cards.

Appellants Failed to Meet Their Burden in Establishing that the District Court Committed Plain Error in Calculating the Total Number of Victims

The Fourth Circuit held that Suarez and Rodriguez failed to satisfy their burden, demonstrated that the district court committed plain error.  To establish plain error, an appellant must show (1) that the district court erred, (2) that the error was clear and obvious, and (3) that the error affected appellant’s substantial rights, affecting the outcome of the proceedings.  Even if the court assumed that appellants established that the district court erred, they did not meet their burden of establishing that the error was clear and obvious or that their rights were affected.

The District Court Did Not Err in Applying the Leadership Enhancement

The Fourth Circuit held that preponderant evidence supported the district court’s finding that Suarez and Rodriguez exercised a “degree of control” over the operation and activities of others involved in the acts. Leadership enhancement applies where a defendant has been an “organizer, leader, manager, or supervisor in any criminal activity” that involved fewer than five participants.  Even if Suarez and Rodriguez only exercised control over one other participant, this is sufficient for a leadership enhancement.

The District Court Did Not Err When it Failed to Impose Downward Variant Sentences

Because the district court did not commit any significant procedural error, the Fourth Circuit then considered whether the sentence was substantively reasonable.  There is a presumption of substantive reasonableness if the sentences are within properly calculated Guidelines ranges.  The Fourth Circuit concluded that the district court did not commit any substantive error.

The District Court’s Ruling Was Affirmed

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11Nov

Fourth Circuit Affirms Sentence Under Two-Step Standard of Review

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By: Katharine Yale

Yesterday in United States v. Naumann, the Fourth Circuit affirmed the sentence of a defendant who pled guilty to failure to register under the Sex Offender Registration and Notification Act. The district court sentenced him to a thirty-five month sentence, a sentence within the Guidelines, and also to an above-Guidelines term of supervised release for fifteen years. The defendant appealed, claiming that the sentence was procedurally and substantively unreasonable.

The Standard of Review for Review of a Sentencing Judgment is a Two-Step Inquiry.

The court reiterated the two-step process for use in reviewing a district court’s sentence. First, the court must determine whether the district court committed a significant procedural error. Such an error could include failing to calculate the Guidelines range, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the sentence.

Next, if there is no significant procedural error, the court must determine whether the sentence is substantively reasonable. Here, under an abuse of discretion standard, the court must consider the totality of the circumstances, including any variance from the Guidelines range.

The district court is given deference and the fact that the Fourth Circuit would have imposed a different sentence is not enough to justify a reversal.

The Sentence and Above-Guidelines Term of Supervised Release Was Not Imposed in Error.

The defendant argued that the district court did not consider the § 3553(a) factors in its decision. However, the record showed that the district court did address the factors and as such, the court found that the sentence was not imposed in error.

Next, the defendant argued that the above-Guidelines term of supervision was imposed in error. First, on procedural grounds, he argued that the factual findings relied on by the district court were erroneous and that the district court did not adequately explain the conditions of supervision.

As to the erroneous facts, the court rejected the defendant’s argument because any error in considering a Facebook post was harmless, and the fact that the court misspoke about a previous failure to register was actually the court alluding to part of the conduct underlying the offense. The court found that the sentencing transcript did adequately explain the reasoning for the condition of supervision. Thus, there was no procedural error.

The court also rejected the defendant’s claim that the length of supervision imposed by the district court was substantively unreasonable. While the court did rely on precedent in its decision, it properly conducted an individualized assessment of defendant’s case before deciding on the sentencing variance.   Next, the court found that the district court did not improperly consider the need for punishment in imposing a sentencing variance because it was only mentioned with respect to the consideration of deterrence and the protection of the public.

Finally, the defendant’s last argument was that the requirements of the supervised release themselves were substantively unreasonable. The court rejected this argument under a plain error standard (the defendant did not object to the requirements at sentencing) because defendant’s sex offense was less than five years old, and the district court decided to monitor defendant’s behavior through polygraph testing and mental health treatment to determine whether sex offender treatment is necessary.  Instead of requiring sex offender treatment, the district court took the more measured approach and therefore, there was no plain error.

District Court Judgment Affirmed.

The Fourth Circuit held that the sentence imposed by the district court was procedurally and substantively reasonable. Thus, the sentence imposed by the district court was affirmed.

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4Nov

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

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By Chad M. Zimlich

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

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

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

Avila Had an Exceedingly Long History of Criminal Conduct

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

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

The California Burglary Conviction Qualifies as an Aggravated Felony

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

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

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

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

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

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

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

First-Degree Burglary Is a Crime of Violence

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

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3Nov

Supervised Release Violation Sentencing Statute Relates Back to Original Offense

Categories: 4th Cir. Blog
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By: Dan Menken

Today, in United States v. Ward, the Fourth Circuit affirmed the conviction of George A. Ward for violating the conditions of his supervised release. He was sentenced to 20 months imprisonment, which is the mandatory minimum under 18 U.S.C. § 3583(g), which Congress amended in 1994 to eliminate the statute’s minimum sentencing provision. In this case, the statute was amended after Ward committed the underlying offense, but after he engaged in the conduct that led to the revocation of his supervised release.

Ward Violated Parole Agreement by Testing Positive for Controlled Substances

In December 1994, Ward plead guilty to three counts of being a felon in possession of a firearm, two counts of distribution of crack cocaine, and one court of use of a firearm in furtherance of a drug trafficking crime. He ultimately received a sentence of 200 months, followed by a five-year period of supervised release. The supervised release prohibited Ward from illegally possessing a controlled substance.

In April 2013, the government filed a petition in the district court seeking to revoke Ward’s supervised release. The government alleged that Ward had tested positive for cocaine or marijuana on multiple occasions. At a hearing on the government’s petition, Ward admitted that he had possessed cocaine and marijuana on numerous occasions during his supervised release. The district court revoked Ward’s supervised release and sentenced him to 20 months in prison. In calculating Ward’s sentence, the court followed the version of 18 U.S.C. § 3583(g) that was in effect at the time he was sentenced for his underlying crimes. These guidelines specified that the defendant must serve a mandatory minimum sentence of one-third of his supervised release term.

Congress amended 18 U.S.C. § 3583(g) in September 1994, eliminating the mandatory minimum sentencing provision.

Did the District Court Err in Applying Former Version of 18 U.S.C. § 3583(g)?

Ward argued that the former version of the statute was not applicable because the statute was amended before he was originally sentenced and before he committed the acts in violation of his supervised release. In coming to their decision, the Fourth Circuit relied on Johnson v. United States, which held that a defendant was subject to the sentencing provisions of the statute in effect when the initial offense was committed. That court specifically held that “postconviction penalties relate to the original offense.” Thus, any violation of a supervised release would relate back to the time when the underlying offense was committed. The fact that Ward was not sentenced for his crimes until after the statute was amended is immaterial because the court must look back to the initial offense.

Moreover, under the federal Savings Statute, 1 U.S.C. § 109, absent a clear indication from Congress of retroactive application, a defendant is not entitled to “application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense.” Thus, the Savings Statute preserved the mandatory minimum punishment provision of § 3583(g).

The fact that Ward was not sentenced for his crimes until after the statute was amended is immaterial. Therefore, the district court correctly applied the former version of § 3583(g), which was the statute in effect when Ward committed the underlying crimes.

Did Mandatory Minimum Provision Violate Defendant’s Sixth Amendment Rights?

Ward further agues that the mandatory minimum provision in § 3583(g) violated his Sixth Amendment rights, because the factual findings required to impose that sentence were not made by a jury applying the standard of beyond a reasonable doubt. The Fourth Circuit once again turned to Johnson, which stated that a violation of the conditions of a supervised release “need only be found by a judge under a preponderance of the evidence standard.” However, they also noted that in Alleyne v. United States, the Supreme Court required a jury determination under the standard of beyond a reasonable doubt for any factual finding in a criminal trial that requires imposition of a statutory mandatory minimum sentence. In this case, the Fourth Circuit determined that Ward was facing a supervised release revocation, which stands in contrast to a criminal trial. According to Morrissey v. Brewer, “the full panoply of rights due a defendant in [a criminal prosecution] does not apply to parole revocations.” Additionally, those individuals on supervised release enjoy only “conditional liberty” because they already have been convicted of the criminal offense.

Thus, the Fourth Circuit concluded that Ward was not entitled to have the alleged supervised release violation proven to a jury beyond a reasonable doubt.

District Court’s Judgment Affirmed

The Fourth Circuit held that the district court did not err in applying the former version of 18 U.S.C. § 3583(g) in Ward’s supervised release revocation proceeding. The Court further held that Ward’s Sixth Amendment rights were not violated. Accordingly, the Court affirmed the district court’s judgment.

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