Wake Forest Law Review
3Nov

Supervised Release Violation Sentencing Statute Relates Back to Original Offense

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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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2Nov

Correcting a District Court’s Sentencing Guideline Error

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By: Kaitlin Price

In U.S. v.  Williams, the Fourth Circuit affirmed the revocation of Defendant’s supervised release, but vacated the District Court’s sentence and remanded the case to resentencing because the district court used the wrong sentencing guidelines.

The Defendant, Ezekiel Elijah Williams, was sentenced to thirty-seven months of imprisonment for a Grade B violation of his supervised release. However, the court miscalculated the sentence.  Here, the defendant is a Category IV offender and committed a Grade B violation, thus the sentencing range should  have been between twelve and eighteen months.  When a court uses the wrong sentencing guidelines, it has committed a reversible error.  Thus, the Fourth Circuit vacated the sentence and remanded for resentencing.

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29Oct

Private Correctional Officers Occupy “Sensitive Position” For Sentencing Purposes

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By Patrick Southern

Did the District Court Err in Determining a Private Correctional Officer Occupies a “Sensitive Position” for the Purpose of Enhanced Sentencing?

Today, in United States v. Dodd, the Fourth Circuit decided a matter of first impression. The appellant Dodd challenged a decision to enhance the sentence he received after pleading guilty to bribing a correctional officer and conspiracy. Specifically, Dodd argued private correctional officers do not occupy a “high-level decision-making or sensitive position” as defined in sentencing guidelines. The Fourth Circuit disagreed, affirming his sentence.

Appellant Bribed Private Correctional Officers

The case began when staff members at a private correctional institution (which contracts with the Federal Bureau of Prisons to house inmates) found prohibited items in Dodd’s cell. An investigation revealed Dodd was paying correctional officers to smuggle cell phones and tobacco products into the institution, where he would then re-sell them to other inmates.

Dodd pleaded guilty to bribing a private correctional officer and to conspiracy. Prior to sentencing, a probation officer determined that sentencing guidelines provided for a sentence of thirty-seven to forty-six months for Dodd. The calculation included a four-level enhancement under U.S.S.G. § 2C1.1(b)(3), which applies when “the offense involved an elected public official or any public official in a high-level decision-making or sensitive position.” Without the enhancement, the sentencing range would have been twenty-four to thirty months.

Dodd objected to the enhancement, arguing the officers did not occupy a “high-level decision-making or sensitive position.” The probation officer recommended the district court find that correctional officers occupy a sensitive position because they “have substantial authority, influence, and control over inmates and are responsible for the overall management, safety, and security of a given facility.”

The District Court found that correctional officers occupy a sensitive position because they have “the authority and ability to directly and significantly influence inmates’ lives and the entire facility’s safety with the decisions he or she makes.” Dodd then appealed to the Fourth Circuit.

Private Correctional Officers Occupy a “Sensitive Position” For Sentencing Purposes

The commentary on the sentencing guidelines provides a definition for a “high-level decision-making or sensitive position.” Such positions are “characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process.” The definition continues to note that officials in a sensitive position “include a juror, a law enforcement officer, an election official, and any other similarly situated individual.”

Prior to this case, only the Fifth Circuit had considered whether correctional officers hold a sensitive position, and then only in unpublished opinions. It held they do because they “have the authority and the ability to directly and significantly influence inmates’ lives and the entire facility’s safety with the decisions [they] make.” The Fifth Circuit cases defined a sensitive position as “one that has power to affect the integrity and workings of the judicial and law enforcement system.

Private Correctional Officers are “Similarly Situated” to Law Enforcement Officers

Dodd made four arguments as to why private correctional officers should not be considered to hold a “sensitive position.” The Fourth Circuit dismissed them all in turn.

First, he argued private correctional officers don’t make “any governmental decision” or wield “any influence, much less substantial influence, over any government agency decision.” The Fourth Circuit responded that the correctional officers operated under contract with the Federal Bureau of Prisons, and the arrangement empowered officers to make decisions “on behalf of” the Bureau of Prisons. Dodd’s bribes caused the officers to wield their authority in improper ways.

Second, Dodd said he did not intend for his bribes to influence official acts, arguing that the officers performed no official act because guards delivering contraband are operating outside their official capacity. The court responded that any public official acting pursuant to a bribe is acting contrary to his or her role. Dodd bribed the officers specifically to use their position to undermine the institution’s security.

Third, Dodd argued private correctional officers are not similarly situated to jurors, law enforcement officers, or election officials (the examples from the Guidelines commentary) because private correctional officers do not take an oath, are not publicly employed, do not determine guilt or innocence, and cannot arrest members of the public. The court agreed that private correctional officers are not identically situated to the examples, but noted that is not the standard. The definition in question includes those who are “similarly situated” to the listed examples. Private correctional officers “wield the coercive power of the state to maintain order and safety among the populations they protect.” Bribes lead to a violation of the public trust placed in them.

Finally, Dodd said sentencing enhancement has “no conceivable outer limits” if it covers private correctional officers. The Fourth Circuit responded that these officers are responsible for maintaining safety and security among a captive, potentially dangerous population, and as such they play an integral role in the operation of the justice system, distinguishing them from most public officials

Ultimately, the court said private correctional officers are “similarly situated” to law enforcement officers, which are specifically mentioned in the definition in the commentary to the sentencing guidelines. As a result, they are considered to hold a “sensitive position” as outlined under the sentencing guidelines. Thus, the Fourth Circuit affirmed the sentencing enhancement as it applied to Dodd.

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29Oct

Fourth Circuit Upholds Conviction and Sentencing in Drug-Trafficking and Firearm Case

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By: Carson Smith

Defendant Contends Possession of a Firearm Conviction and Multiple Sentencing Enhancements.

In United States v. Pineda, the Fourth Circuit upheld the lower court’s conviction and sentencing of the defendant, Jesus Pineda. The Eastern District of North Carolina convicted the defendant on two counts of distribution of cocaine, possession of a firearm in furtherance of drug-trafficking, and possession of a sawed-off shotgun. The district court sentenced the defendant to 132 months in prison. On appeal, the defendant challenged the “possession of a firearm in furtherance of drug-trafficking” conviction as well as several sentencing enhancements which greatly increased the length of his imprisonment. The Court affirmed the possession conviction based on specific statements and actions, involving the handgun, made by the defendant during the cocaine transaction. Furthermore, the Court upheld the sentencing enhancements applied by the district court.

Defendant Convicted for Selling Cocaine and Firearms to Confidential Informant.

On November 30, 2011, a confidential informant (CI) purchased an ounce of cocaine and stolen assault rifle from Raul Sanchez. Sanchez acquired the items earlier in the day from Jesus Pineda and Pineda accompanied Sanchez to the transaction with the CI. Shortly thereafter, Pineda contacted the CI directly and proposed cutting Sanchez out of any future deals. On January 25, 2012, the CI purchased 54 grams of cocaine and a 12-gauge sawed-off shotgun from Pineda. The two had also discussed the purchase of a .380 caliber handgun; however, Pineda, at the meeting, refused to sell the gun. On February 8, 2012, the CI purchased 54 grams of cocaine and the .380 caliber handgun from Pineda. Subsequently, Pineda was arrested, charged, and convicted.

Court upholds “Possession of a Firearm in Furtherance of Drug-Trafficking” Conviction Because Defendant Exposed the Firearm During the Transaction and Emphasized the Firearm’s Necessity.

On appeal, Pineda contended that mere possession of a firearm during a drug transaction does not constitute “possession of a firearm in furtherance of drug-trafficking.” According to 18 U.S.C. § 924(c)(1)(A), the government must present evidence indicating that the possession of a firearm “furthered, advanced, or helped forward a drug trafficking crime.” At trial, it was established that during the January 25, 2012 meeting, Pineda took out the .380 caliber handgun and “placed it underneath his leg while conducting the drug transaction.” The CI asked to buy the gun, but Pineda refused, stating that it was “the only piece” he owned. The Court affirmed the conviction, stating that the evidence was sufficient enough for a reasonable juror to determine that the firearm was critical to Pineda’s drug trafficking activities.

Sentencing Enhancement Involving Hearsay Evidence Upheld Based on the Reliability of the Information.

Pineda also raised several issues challenging the sentencing enhancements applied by the district court. First, Pineda argued that the district court should not have factored the November 30, 2011 meeting into sentencing considerations because the only evidence tying Pineda to the Sanchez-CI purchase were hearsay statements by Sanchez. In sentencing, a district court is allowed to consider information that would otherwise be kept out of trial due to evidentiary rules as long as the information “has a sufficient indicia of reliability to support its probable accuracy.” In reviewing the reliability of information surrounding Pineda’s involvement in the November 30, 2011 transaction, the Court found persuasive the fact that Pineda was present at the transaction. Therefore, the Court determined that the information had a sufficient indicia of reliability.

Sentencing Enhancement Involving Three or More Illegal Transactions Upheld Based on the High Degree of Similarity Between the Transactions.

Second, Pineda argued that the November 30, 2011 transaction was not part of a common scheme or plan as the two subsequent deals because Pineda played a different role in the November 30 transaction and “there was no evidence showing that the three transactions were part of a larger pattern of illegal activity.” In order for the three transactions to be part of a common scheme or plan, it must be shown that they are “substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.” Since Pineda was the seller of the cocaine and firearms in each of the three transactions, the Court held that the transactions had a “relatively high degree of similarity.” Therefore, the Court held that the district court did not err in grouping the three transactions for sentencing purposes.

Court Holds That Double Counting Involving the .380 Caliber Firearm Did Not Occur.

Finally, Pineda argued that the district court improperly double counted his possession of the .380 caliber handgun in applying the sentencing guidelines. Pineda’s sentencing was increased “for committing an offense that involved three or more firearms.” However, Pineda claimed that a statutory limitation prevented the trial court from counting the .380 caliber gun, for sentencing purposes, under both the “possession of a firearm in furtherance of drug-trafficking” conviction and the “three or more firearms” enhancement. “Double counting occurs when a provision of the Guidelines is applied to increase punishment on the basis of a consideration that has been accounted for by application by another Guideline . . . . Double counting is generally authorized unless the Guidelines expressly prohibit it.” The Court determined that the Guidelines did not expressly prohibit double counting and that double counting did not occur in this case. In particular, the Court held that the “in furtherance” conviction pertained to “particular unlawful uses of a firearm,” whereas the “three or more firearms” enhancement pertained to the number of firearms involved. Therefore, this was not an instance of double counting. The Court held that the sentencing enhancements applied by the trial court were proper.

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28Oct

Only Substantial Assistance Factors Considered in a § 3553(e) Motion

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By: Katharine Yale

Did the District Court Err in Declining to Consider Any 18 U.S.C. § 3553(a) Factors Other Than Substantial Assistance when Determining the Extent of Appellant’s Sentence Reduction Below the Mandatory Minimum?

Today, in United States v. Spinks, the Fourth Circuit considered the Appellant’s challenge to his eighty-four month sentence for conspiracy to distribute cocaine and cocaine base. The Appellant argued that the district court erred by solely considering factors related to substantial assistance in reducing his sentence below the mandatory minimum. He contended that other 18 U.S.C. 3553(a) factors should have been considered.

Appellant Returns to the Fourth Circuit.

The appellant, Spinks, pled guilty to one count of conspiracy to distribute cocaine and cocaine base in 2008. Due to a filing of an Information of Prior Conviction, the district court determined that a 240 month sentence was appropriate. The government then moved, pursuant to 18 U.S.C. § 3553(e), for a thirty percent downward departure on Spinks’ sentence based on his substantial assistance in the prosecution of a co-defendant. Ignoring factors other than those related to the substantial assistance, the district court granted the reduction, resulting in a 168 month sentence.  On appeal, this court affirmed the sentence.

In 2012, Spinks filed a motion requesting a reduction in his sentence because the underlying felony supporting his initial sentencing enhancement no longer qualified for the enhancement, after the ruling in United States v. Simmons. After resentencing, Spinks’ sentence became 120 months. The government renewed its § 3553(e) motion and the district court again granted the thirty percent departure, resulting in a eighty-four month sentence.

Spinks then asked the court to consider “some additional amount” of reduction due to rehabilitation that occurred since his first sentencing. The district court concluded that it did not have authority to consider § 3553(a) factors once it had departed below the mandatory minimum sentence.

Under § 3553(e), Only a Defendant’s Substantial Assistance and Factors Related to That Assistance May be Considered when Determining the Extent of a Departure Below a Mandatory Minimum Sentence.

Spinks appealed on the basis of the district court’s denial of consideration of factors other than his substantial assistance under § 3553(e). He contended that his post-conviction rehabilitation should have been considered in determining the extent of his reduced sentence. Spinks relied on two cases, United States v. Davis and Pepper v. United States.

Distinguishing both Pepper and Davis, and relying on United States v. Hood, the court emphasized that the extent of a reduced sentence under § 3553(e) can only be influenced by a defendant’s substantial assistance when a further departure would be below the mandatory minimum sentence.

Factors Related to Appellant’s Rehabilitation do not Fall Under § 3553(e) Because They are not Related to his Substantial Assistance, and the Cases upon Which Appellant Relied do not Apply to These Facts.

This court found that Hood controlled under the facts of this case. In Hood, the issue was the same as here: can a district court consider non-assistance factors when determining the extent of a reduced sentence under § 3553(e)? The Hood court concluded that because Congress has authorized a departure from the minimum sentence for this limited purpose, only the defendant’s substantial assistance and factors related to that assistance could be considered under § 3553(e). Thus, in this case, factors relating to anything other than Spinks’ substantial assistance should not have been considered, and the district court was correct in declining to consider Spinks’ rehabilitation.

Spinks contended that Davis overruled Hood and permits consideration of other factors because in that case, other factors were considered in a motion for sentence reduction under rule 35(b) of the Federal Rules of Criminal Procedure. The Fourth Circuit rejected this argument because here, the motion before the court was a § 3553(e) motion, not a 35(b) motion. The court emphasized the differences in the language of the two statutes. Section 3553(e) provides that the court can reduce the sentence “so as to reflect” substantial assistance, while Rule 35(b) does not contain language that the reduction must “reflect” the defendant’s assistance.

Spinks also contended that the Supreme Court decision Pepper abrogated Hood. In Pepper, the Supreme Court held that after a defendant’s sentence has been set aside on appeal, a sentencing court may consider a defendant’s post-sentencing rehabilitation to support a sentence outside of the advisory Guidelines range.   The Fourth Circuit rejected this argument because the Pepper court made clear that the holding applied to variances “from the now-advisory Federal Sentencing Guidelines range.” In this case, Spinks was not seeking a variance from the advisory Guidelines range, but instead was seeking a departure from a mandatory minimum.

The District Court Was Correct in Only Considering Substantial Assistance Factors.

Based on the language of the statute and the reasoning in Hood, the Fourth Circuit held that the district court did not err by solely considering Substantial Assistance factors under § 3553(e).  The court affirmed the appellant’s reduced sentence.

Dissenting Judge Would Not Make the Distinction Between § 3553(e) and Rule 35(b).

The dissent would not have made the distinction between § 3553(e) and Rule 35(b). In the advisory committee notes to Rule 35(b), the committee states that the omission of “reflect” (and other changes) in Rule 35(b) “are intended to be stylistic only.” Thus, based on the committee note and the reasoning in the Ninth Circuit case, United States v. Tadio, Senior Circuit Judge Davis would not make the distinction between the two and would allow other factors to be considered in both circumstances.   However, because Spinks failed to offer sufficient evidence regarding his rehabilitation, Judge Davis concurred in the judgment and voted to affirm the sentence.

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28Oct

Sentencing Following Revocation of Supervised Release

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By Taylor Ey

Did the District Court Impose an Appropriate Sentence After Appellant’s Supervised Release Was Revoked?

Today, the Fourth Circuit issued a per curiam opinion, affirming the judgment of the United States District Court for the Eastern District of North Carolina in U.S. v. Greene.  In this case, Appellant Greene appealed his twenty-four month sentence imposed after his supervised release was revoked.  The Fourth Circuit reviewed the district court’s decision to determine whether the sentence was “plainly unreasonable.”

The Sentence Is Inappropriate if It Is “Plainly Unreasonable”

First, the Fourth Circuit looked to whether the sentence was procedurally reasonable.  A sentence is procedurally reasonable if the district court considered Chapter Seven of the Sentencing Guidelines and 18 U.S.C. § 3553(a) (2012).  The district court must also explain its issued sentence.  However, the sentence after supervised release “need not be as detailed or specific” as the original sentence explantation.  Secondly, the sentence is substantively reasonable if the district court stated a proper basis for its conclusion.

The Sentence Was Procedurally and Substantively Reasonable

The Fourth Circuit concluded that the sentence was procedurally reasonable because the sentence was within the two-year statutory maximum, and the district court considered the § 3553 factors.

The sentence was substantively reasonable because the district court appropriately exercised its discretion in issuing the maximum sentence because of appellant’s repeated drug use.   The appellant could not or would not abide by the terms of his supervised release because he frequently smoked marijuana.  The probation office repeatedly attempted to help appellant conquer his drug addiction. However, appellant was unable to change his behavior, and thus the altered term of incarceration was appropriate.

 Appellant’s Sentence Was Affirmed

The Fourth Circuit concluded that, although the district court originally gave appellant a lenient sentence, the court did not abuse its discretion when it issued the longer sentence after appellant breached the trust and leniency it afforded him.  Thus, the Fourth Circuit affirmed the judgment.

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27Oct

Fourth Circuit Affirms that Statutory Minimum Sentence Imposed Pursuant to 18 U.S.C. § 922(e) Does Not Conflict with § 3553(a).

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By: Kelsey Kolb

Friday, in United States v. Stewart, the Fourth Circuit affirmed the District Court for the District of Maryland’s 180-month armed career criminal sentence against Stewart. Stewart pled guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012), to which the district court attached the 180-month sentence, pursuant to 18 U.S.C. § 924(e) (2012).

Did the district court err in its imposition of both a statutory mandatory minimum and increased statutory maximum sentence?

Stewart contended that the district court’s imposition of the statutory mandatory minimum sentence was in direct conflict with 18 U.S.C. § 3553(a) (2012), which mandates the court to impose a sentence that is “sufficient but not greater than necessary.” Stewart further appealed his statutory maximum sentence, arguing that the district court violated his Fifth and Sixth Amendment rights by increasing his sentence based on facts that were neither charged on the indictment, nor submitted to the jury.

The § 924(e) mandatory minimum does not conflict with the sentencing mandate of § 3553(a).

The Fourth Circuit held that § 3553(a) was not controlling in this case and thus, that the mandatory minimum was proper. The court reasoned that 18 U.S.C. § 3551(a) only yields to § 3553(a), the general criminal sentencing provision, if there is no other specific mandatory sentencing provision on point. Consequently, the “no greater than necessary” language from § 3553(a) would not apply in this case since there was another specific provision on point, § 924(e). Furthermore, even if § 3553(a) were controlling in this case, the court reasoned that the “no greater than necessary” language does not authorize a district court to sentence below the mandatory statutory minimum.

The increased statutory maximum sentence is not in violation of Stewart’s Fifth or Sixth Amendment rights.

The court briefly held that this claim was foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 228–35 (1998).

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21Oct

Fourth Circuit Dismisses Sentencing Appeal as Moot

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By: Caroline Daniel

Is a Defendant’s Sentence Appealable if He is Released While the Appeal is Pending?

A defendant’s sentence is not necessarily appealable if he is released while the appeal is pending. Today, in United States v. Duane McAtee, the Fourth Circuit dismissed the Defendant’s appeal of his six month conviction as moot.  Duane McAtee was convicted of contempt of court, and was sentenced to serve six months.  He appealed this conviction, but while his appeal was pending, he was released.

On Appeal, the Court May Address Sua Sponte a “Live Case or Controversy.”

The Fourth Circuit addressed McAtee’s claim sua sponte.  Citing Friedman’s, Inc. v. Dunlap, the Court stated, “We may address sua sponte whether an issue on appeal presents ‘a live case or controversy . . . since mootness goes to the heart of the Article III jurisdiction of the courts.”  Here, the Court determined that a live case or controversy no longer existed.

McAtee’s Sentence No Longer Presented a “Live Case or Controversy.”

When the Court addressed McAtee’s appeal, he had already been released from his imprisonment.  The Fourth Circuit implied that McAtee’s appeal might have been preserved if he had raised “any collateral consequences of it.”  However, McAtee did not raise any collateral consequences.  Coupling this with his early release, the Fourth Circuit held that McAtee’s appeal no longer contained any live case or controversy regarding the duration of his incarceration.

McAtee’s Appeal Dismissed as Moot.

Finding that there was no appealable controversy remaining after McAtee’s release, the Fourth Circuit dismissed his appeal as moot.  The Court dispensed with oral argument, determining that the facts that were before the panel were sufficient pieces of evidence to warrant dismissal.

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21Oct

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

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By Chad M. Zimlich

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

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

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

Defendant’s Possession of a Stolen Firearm

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

The District Court Has Broad Discretion in Sentencing

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

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

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

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

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

Sentence Was Reasonable, There Was No Abuse of Discretion

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

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20Oct

Health Care Fraud Conspiracy Conviction Affirmed

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By Dan Menken

Today in United States v. Garnes, the Fourth Circuit affirmed the conviction of Charlotte Elizabeth Garnes for conspiracy to commit health care fraud, obstruction of an official proceeding, and ten counts of making a false statement relating to a health care benefit program.

Defendant Raises Three Claims Challenging the Conviction and Sentence

First, Defendant claims that the district court abused its discretion by permitting the government to cross-examine her regarding an extramarital affair with her former boss.

Second, Defendant claims that the district court erred by denying her motion for a judgment of acquittal because the evidence presented was insufficient to establish that her convictions for conspiracy to commit health care fraud and for making false statements relating to a health care benefit program were “knowing and willful.”

Finally, Defendant claims that the district court improperly held her responsible for losses caused by her co-conspirator when calculating her sentencing guidelines range.

 Defendant Involved in a Conspiracy to Commit Health Care Fraud

Defendant, along with two unlicensed counselors, entered into an agreement to defraud the North Carolina Medicaid agency. Defendant submitted numerous reimbursement claims in which she falsely represented that she had provided therapeutic services. Many of the claims were facially invalid because claimed therapy sessions exceeded 24 hours in a single day. Additionally, Defendant submitted claims for services rendered in North Carolina when she was in a different state, and she claimed services were provided to patients who testified that they never received services from Defendant.

During cross-examination, the government sought to show that Defendant had been fired from her previous employment for failure to maintain proper records. Defendant responded to this line of questioning by stating that the owner’s significant other had fraudulently used Defendant’s Medicaid number. In response, the government sought to impeach Defendant’s alternative explanation by questioning Defendant regarding her extramarital affair with the owner.

 Claim One: Evidence Impeaching Witness Testimony Allowed on Cross-Examination

Reviewing for an abuse of discretion, the Fourth Circuit held that the district court correctly overruled the objection of Defendant’s counsel because Rule 404(b) does not control evidence offered for impeachment on cross-examination. The evidence in question was probative of Defendant’s character for truthfulness.

 Claim Two: Knowledge and Intent May Be Inferred From Circumstantial Evidence

Reviewing de novo, the Court noted that in order to convict Defendant of conspiracy to commit health care fraud, the government has to show that Defendant “knowingly and willfully executed” a fraudulent health care scheme. The Court further noted that the jury may infer knowledge and intent from circumstantial evidence in conspiracy cases. In this case, there was sufficient evidence regarding Defendant’s reimbursement claims to establish that Defendant had “knowingly and willingly” agreed to participate in a fraudulent health care scheme with her co-conspirators.

Furthermore, in order to convict Defendant of making a false statement relating to a health care benefit program, the government must show that Defendant knowingly and willfully made materially false or fraudulent statements in connection with the delivery of or payment for health care benefits, items, or services. Similarly, on this charge, the Fourth Circuit ruled that there was sufficient evidence from which a jury could find that the false statements made by Defendant were made knowingly and willfully.

Claim Three: Conspirator Responsible for Foreseeable Acts of Co-Conspirators

The Fourth Circuit held that the district court was entitled to include the amount of losses caused by co-conspirators in calculating the sentencing guidelines range. Defendant’s relevant conduct includes all reasonably foreseeable acts in furtherance of the jointly undertaken criminal activity.

 Conviction and Sentence Affirmed

Holding that there was no reversible error committed by the district court regarding the three claims of the Defendant, the Fourth Circuit affirmed Defendant’s conviction and sentence.

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17Oct

Imprisonment Sentencing After a Revocation of A Supervised Release

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By: Kaitlin Price

In United States v. Kessinger, the Defendant appealed the district court’s issuance of a six-month sentence of imprisonment imposed after revocation of his supervised release. The Defendant questioned whether the Defendant’s sentence is plainly unreasonable. The Fourth Circuit affirmed the district court’s sentence.

District courts are given a broad discretion in imposing a sentence after a revocation of a supervised release. The only requirements are that the sentence must be within the statutory maximum and cannot be “plainly unreasonable”. Here, the district court explained the basis for Defendant’s sentence and considered the 18 U.S.C. § 3553(a) (2012) factors. The Fourth Circuit held that the district court did not abuse its discretion.

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15Oct

Circuit Split Deepened By Fourth Circuit Decision on Sentencing

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By: Patrick Southern

Today, in United States v. Catone, the Fourth Circuit affirmed the defendant’s conviction for making false statements in connection with his receipt of federal workers’ compensation benefits. However, it reversed the decision of the District Court for the Western District of North Carolina with respect to the defendant’s jail sentence and restitution, deepening a split between the circuits in the process.

The defendant, Catone, worked for the United States Postal Service until 2006, when he submitted a claim for workers’ compensation benefits based on injuries arising from extended periods of driving. His benefits were approved, and he began receiving them in March 2007. To verify continued eligibility, Catone was required to submit a “CA-1032” form each year. The form instructed him to disclose if he had been employed in any way during the previous year. In 2008 and 2009, he indicated he had not been employed. As a result, Catone received more than $121,000 in benefits until September 2009.

Catone was indicted in 2011 on two counts of making false statements on the forms by failing to disclose a job at which the government alleged he performed custodial work. He also was charged with knowingly making a false statement to a federal official (he had told an agent his wife was employed as a custodian and that he occasionally assisted her with her tasks).

At trial, testimony indicated one check in the amount of $635 was written directly to Catone for custodial work performed during the time he received federal workers’ compensation benefits. The jury convicted him of one count of making a false statement on the CA-1032 form he filled out in April 2008, and acquitted him of the other two counts.

A pre-sentence investigation report prepared by a probation officer concluded the conviction carried a statutory maximum sentence of five years. The probation officer found Catone was responsible for a loss of $128,124.75 (the entire amount of benefits he had received). Based on the loss calculated and Catone’s criminal history, sentencing guidelines advised a range of twenty-one to twenty-seven months in jail and restitution of $106,411.83. The district court ultimately imposed a sixteen-month sentence and ordered payment of the full amount of restitution advised in the pre-sentence investigation report. Catone appealed his conviction, his sentence, and the award of restitution.

On appeal, the Fourth Circuit affirmed Catone’s conviction. The defendant argued the government failed to disclose evidence (a CA-1032 form filled out by Catone in 2007 which included an admission of employment as a custodial worker) that undermined its theory that Catone willfully concealed his custodial work. This, Catone argued, was a violation of the rule from Brady v. Maryland. However, to establish a valid Brady claim, the evidence must be known to the government but not the defendant. Since the evidence at issue here was a form filled out by the defendant himself, and that evidence was available to the defendant, his Brady claim failed. Thus, the conviction was affirmed.

However, the sixteen-month sentence of imprisonment was reversed. The statute in question in this case provides the maximum sentence is one year “if the amount of the benefits falsely obtained does not exceed $1,000.” Here, the jury made no finding that Catone’s offense led to more than $1,000 in falsely obtained benefits. The Fourth Circuit noted that the Supreme Court had recently held in Apprendi v. New Jersey that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt.” The Supreme Court also extended that reasoning to mandatory minimum sentences, finding that when a fact “aggravates the legally prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury . . . .”

Essentially, the Fourth Circuit held that because the higher sentence required a finding that the offense led to more than $1,o00 in falsely obtained benefits, the amount of benefits falsely obtained was an element of the offense which must be submitted to the jury. The court acknowledged this would deepen a split between the circuits, with the Fourth Circuit joining the Eleventh Circuit in this interpretation of Apprendi (the Second, Seventh, and Tenth Circuits have disagreed). Because this element of the offense was not submitted to the jury, and the error was not harmless, the Fourth Circuit reversed the sentence.

The court also reversed the district court’s order of restitution. The Fourth Circuit noted that precedent indicates the amount of loss in a government benefits case like this is to be calculated by determining the difference in the amount of benefits the defendant actually received and the amount he would have received had he truthfully and accurately completed the CA-1032 forms. The government’s argument at trial was that without his deception, Catone would have received no benefits at all.

Catone argued instead that the loss was less than $1,000, citing testimony of two federal employees who stated his benefits would have been reduced, not terminated, had he disclosed his work properly on the CA-1032 forms. Further, it was possibly the small amount of income he earned would not have reduced his benefits at all. The Fourth Circuit held that the district court did not perform the calculation required by precedent, and that the government provided no evidence as to the results which would have come from a proper calculation of loss. As a result, it reversed the district court’s order as it related to restitution.

The case was remanded to the Western District of North Carolina for further proceedings.

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