Wake Forest Law Review
16Feb

The Fourth Circuit Cites Contract Law to Dismiss Waived Sentencing Appeal

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By Eric Benedict

On February 16, 2016, the Fourth Circuit Court of Appeals issued its published opinion in the criminal case, United States v. McLaughlin. Judge Wilkinson, writing for a unanimous panel, dismissed McLaughlin’s appeal. The panel used a published opinion to clarify which types of appeals fall within the perimeters of a plea bargain which waives the right to appeal a sentencing guideline range established at sentencing.

McLaughlin Accepts Plea Agreement for ATM Fraud

In 2014, Tineka McLaughlin pleaded guilty to violating 18 U.S.C. § 1344 by her participation in an ATM fraud scheme in North Carolina. McLaughlin entered into an agreement with prosecutors which, in part, required McLaughlin:

To waive…all rights…to appeal the conviction and whatever sentence is imposed on any ground, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing…”

[emphasis added]

At her plea hearing, McLaughlin verbally indicated that she understood that she retained only the right to appeal based on an upward departure of the sentencing. To calculate McLaughlin’s sentence, the judge used the “four-level role-in-the-offense enhancement” found in the United States Sentencing Guidelines at U.S.S.G. § 3B1.1(a) (the “role increase”). The provision provides for a four-level increase in the offense level “[i]f the defendant was an organizer or leader of a  criminal activity that involved five or more participants or was otherwise extensive….” The role increase resulted in a guideline imprisonment of fifteen to twenty-one months. The District Court then cited U.S.S.G. § 4A1.3(a)(1) to impose an upward departure sentence of twenty-seven months to reflect there seriousness of the defendant’s criminal history (the “recidivism departure”).

McLaughlin Appeals “Role-In-Offense” Sentence Increase

On appeal from the Eastern District of North Carolina, McLaughlin criticized the use of the role increase in calculating her sentence.  Citing her plea agreement, the United States moved to dismiss, arguing that the calculation of the role increase was a part of the “establishment of her advisory Guideline range” and thus, was waived in her plea agreement. McLaughlin in turn argued that since she did in fact receive an upward departure, she was free to appeal any part of her sentence. Counsel for McLaughlin did not appeal the recidivism departure.

The Fourth Circuit Concludes that McLaughlin Waived Appeals Grounds

Judge Wilkinson turned first to the text of the waiver to conclude that the grounds for appeal had been waived.  The court found an examination of the waiver provision in its entirety particularly instructive against McLaughlin’s claim of error.  Reasoning that the role increase is, by definition part of the establishment of the “advisory guideline,” the court concluded that appeals like McLaughlin are exactly what the waiver seeks to avoid. Notably, the Fourth Circuit explained that because the interpretation of plea bargains is rooted in contract law, and because contract terms must be interpreted in light of the agreement in its entirety, the waiver provision must include an appeal based on the role increase, since otherwise, other portions of the waiver would be rendered “mere surplusage.”

Judge Wilkinson next addressed McLaughlin’s contention that the agreement was ambiguous and should be construed in her favor to allow the appeal. However, the court found the meaning of the agreement clear in its prohibition of such an appeal, and the allowance of an appeal based on an upward departure.

Finally, the panel questioned the appeal’s propriety in light of the existence of  the available grounds, the recidivism departure. Although not mentioned by the court in this case, had McLaughlin appealed, the Fourth Circuit has previously explained that it would have “consider[ed] whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range.” United States v. Harnandez-Villanueva.  However, as the court noted, this issue was not before the court.

The Fourth Circuit Determines that the Appeal as Waived and Dismisses

The court applied principles of contract interpretation to the interpretation of the plea agreement to find that it prohibited the appeal based on the role increase. The Fourth Circuit therefore found that McLaughlin waived her right to appeal the role increase and dismissed the appeal.

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23Feb

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

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By Ashley Escoe

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

Bridgers’ Guilty Plea at the Trial Court

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

Plea Colloquy and Standard of Review

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

Any Omissions During the Plea Colloquy were Harmless Error

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

Appellate Waiver and Standard of Review

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

Bridgers Knowingly and Intelligently Agreed to an Appellate Waiver

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

Conviction Affirmed; Appeal Denied

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

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20Jan

Fourth Circuit Considers Defendant’s Appellate Waiver in Plea Agreement

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By: Katharine Yale

Today in an unpublished per curiam decision, United States v. Talley, the Fourth Circuit considered the validity of an appellate waiver within Talley’s plea agreement. Talley pled guilty to conspiracy to commit Hobbs Act robberies along with two other related charges. He was sentenced to 171 months in prison, a sentence that is at the top of the advisory sentencing guidelines range. Pursuant to Anders v. California, Talley submitted a brief questioning whether his sentence was substantively reasonable, even though there were no other meritorious grounds for appeal. In a supplemental pro se brief, Talley also asked the Fourth Circuit to review the record to determine whether the district court discriminated against him at the sentencing hearing on the basis of race. Talley’s plea agreement contained an appellate waiver, so the Fourth Circuit had to first determine whether that waiver was valid and enforceable.

When is an Appellate Waiver Contained in a Plea Agreement Deemed to be Valid?

The validity of an appellate waiver is reviewed de novo. In order to withstand review, the defendant must agree to the waiver knowingly and intelligently. To determine whether the defendant’s agreement was knowing and intelligent, the reviewing court must look at the totality of the circumstances. Such review includes an examination of the defendant’s educational background, familiarity with the terms of the plea agreement, and the experience and conduct of the defendant. If the district court fully questions the defendant about the waiver of his right to appeal during the plea colloquy, then the waiver is generally held to be both valid and enforceable.

Is Defendant’s Appellate Waiver Valid?

Here, the Fourth Circuit found that the waiver contained in Talley’s plea agreement was both valid and enforceable.

Should the Fourth Circuit Enforce Talley’s Waiver?

The Fourth Circuit will enforce a valid waiver as long as the issue being appealed is within the scope of the waiver. Here, Talley reserved only the right to appeal from a sentence in excess of the advisory sentencing guidelines range determined at sentencing. He waived all other rights to appeal his conviction and sentence. Therefore, the Fourth Circuit held that Talley’s challenge to the substantive reasonableness of his sentence was within the scope of the waiver because the sentence was within the sentencing guidelines.

Did the District Court Discriminate Against Talley at the Sentencing Hearing?

Despite the waiver, the Fourth Circuit was not precluded from determining whether the district court discriminated against Talley based on his race at the sentencing hearing. However, after a review of the sentencing transcript, the Fourth Circuit found no evidence to substantiate the allegation.

The Fourth Circuit Affirms in Part, Dismisses in Part, and Remands.

To the extent that Talley’s claims on appeal were within the scope of the appellate waiver, the Fourth Circuit granted the Government’s motion to dismiss the appeal. Otherwise, the judgment of the district court was affirmed, but the case was remanded to the district court to correct the amount of judgment.

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6Nov

Defendant Must Provide Restitution to Victim of Child Pornography

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figure-of-justice-237109_1280

By: Steven M. Franklin

Yesterday, in U.S. v. Borowski, the District Court for the Eastern District of North Carolina upheld a restitution order for a victim of child pornography pursuant to 18 U.S.C. §§ 3663 and 3663A.

Defendant Pleads Guilty to Child Pornography and Signs Appeal Waiver

The defendant, Matthew Paul Borowski, pled guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). Pursuant to his plea agreement, Mr. Borowski waived his right of appeal under 18 U.S.C. § 3742. However, he could nonetheless appeal if his sentence exceeded the advisory Guideline range, or if he claimed ineffective assistance of counsel or prosecutorial misconduct.  Mr. Borowski was sentenced below the advisory guidelines range to 174 months in prison, and ordered to provide $8000 in restitution to the victim.

Defendant Challenges Restitution Order in Light of Paroline v. United States

Courts enforce appeal waivers so long as the defendant knowingly and intelligently waived his right of appeal, and the issues raised on appeal fall within the scope of the agreement. Mr. Borowski admitted that he knowingly agreed to the appeal waiver, and he did not argue that the restitution order fell outside of the scope of the agreement. Instead, he appealed on the basis that, had he known the Supreme Court was going to hear Paroline v. U.S., he would have requested the restitution order to be excluded from the plea agreement.

Paroline Addresses Calculation of Restitution for Victims of Child Pornography

In Paroline, the Supreme Court determined that restitution orders for child pornography offenses must bear a causal relationship to the victim’s losses. Essentially, similar to when multiple defendants appear before the court and are found to have contributed to the loss of a victim, the court should analyze the proportion of the individual defendant’s contribution to the victim’s losses. Although there is no precise mathematical formula to determine such losses, courts may consider the number of other past defendants who contributed to the victims losses, reasonable predictions of the number of future offenders likely to be caught, and whether the defendant contributed to the actual creation of the images, among other factors.

Change in Law Does Not Effect Restitution Order

The 4th Circuit found Mr. Borowski’s argument unconvincing. A party cannot re-bargain its appeal waiver due to changes in the law, and a change in law does not render a valid plea agreement unenforceable. Thus, simply failing to expect a ruling regarding the calculation of restitution for victims of child pornography does not render Mr. Borowski’s waiver unenforceable.

The Fourth Circuit Dismisses

For these reasons, the 4th Circuit dismissed Mr. Borowski’s appeal, effectively upholding the District Court’s restitution order.

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10Oct

Fourth Circuit Affirms that Motions to Suppress Evidence are Time-barred

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by David Darr

Today, in United States v. Moore, the Fourth Circuit affirmed the District of Maryland’s judgment finding the Defendant guilty of drug trafficking, possession of a firearm in furtherance of drug trafficking, and possession of a firearm by a felon. The defendant, Corey A. Moore, appealed his conviction based on the District Court’s denial of his motion to suppress evidence of a police officer’s stop and the District Court’s finding that his possession of a firearm was “in furtherance of a drug trafficking crime.”

On September 25, 2010, an officer observed Moore walking down the street carrying a green bottle. Thinking this bottle might be alcohol, the officer initiated a stop and Moore took off running. The officer and two bystanders observed Moore toss a package in the dumpster. That package contained a half kilogram of cocaine, worth over $10,000. Moore was then arrested. Two days later, there was an attempted break-in at an apartment rented by Moore. Upon discovering Moore resided in the apartment (he had given them a different address when he was arrested), the police obtained a search warrant. In the apartment, the police found 2.8 kilograms of PCP, drug distributing materials with traces of cocaine on them, $45,000 in cash, and two handguns. Moore was charged with possession with intent to distribute cocaine and PCP, possession firearms in the furtherance of drug trafficking, and possession of firearms by a felon. Before closing arguments, the defense moved to suppress all tangible evidence on the grounds that the officer did not have a reasonable suspicion to stop Moore in the first place. The District Court denied the motion on the grounds that the defense had waived the right to suppress evidence by not raising it before the trial as required by the Federal Rules of Civil Procedure. The court then found Moore guilty on all counts and sentenced Moore to 271 months in prison. Moore raised two issues on appeal; the District Court’s denial of his motion to suppress evidence and the District Court’s finding that Moore possessed firearms “in furtherance of drug trafficking.”

Moore first claimed that the District Court did not decide that he waived his right to a motion to suppress evidence, but instead found on the merits of his motion that no Fourth Amendment violation had occurred. Alternatively, Moore claimed that he qualified for a “good cause” exception to the waiver rule because he learned new evidence at the trial. The Federal Rules of Criminal Procedure require parties to raise motions to suppress evidence before trial, unless the court grants relief for a good cause. This rule is not merely procedural and it is an important rule due to fairness considerations. The rule helps parties to know what evidence to base their case on before the trial. The rule also prevents from unnecessary delays in the trial that may inconvenience the jury. The Fourth Circuit ruled that despite that the District Court briefly brought up the merits of Moore’s motion when it decided the issue was waived, the court was very clear that it was deciding that the issue was waived. The Fourth Circuit decided that the District Court waived the motion instead of deciding the issue on its merits. The Fourth Circuit also decided that new information is not sufficient good cause because new information is learned all the time at trial. It does not change that the evidence could have been challenged before the trial. Because the District Court properly and correctly decided the issue was waived and that there was no good cause for the motion coming late, the Fourth Circuit affirmed the District Court’s decision to deny the motion to suppress evidence.

Moore next claimed that the firearms found in his apartment with the drugs were insufficient evidence that the firearms were used in the furtherance of drug trafficking. The Fourth Circuit reviewed this issue on a clearly erroneous standard because the nexus between the firearms and the drug trafficking crime is a factual question. The Fourth Circuit found plenty of evidence in the record supporting a close nexus between the firearms and drugs. The cash and amount of drugs found with the firearms suggested that Moore was dealing the drugs. Further, Moore did not challenge his conviction on the drug trafficking charges. The firearms being beside Moore’s bed was evidence that Moore used the firearms for protection of the drugs. Another factor that the Fourth Circuit considered was that Moore was not allowed to legally own firearms in the first place as a convicted felon. The Fourth Circuit affirmed the District Courts conviction on this count because it was completely reasonable for the court to find the firearms were in the furtherance of drug trafficking. Ultimately, the Fourth Circuit affirmed Moore’s conviction on all counts.

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9Oct

Zero Damages Against WMATA Police Officer Affirmed

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By Evelyn Norton

Today, in Hutcherson v. Lim, the Fourth Circuit affirmed the decision of the United States District Court for the District of Maryland to deny Hutcherson’s motion for a new trial.

In the District Court, Hutcherson sought relief for personal injuries sustained during a routine traffic stop.  Specifically, Hutcherson alleged that Lim, a Washington Metropolitan Area Transit Authority police officer, assaulted Hutcherson while issuing a citation for illegal window tints.

Following a three-day jury trial, the jury found that Hutcherson had proven assault and battery claims against Lim.  Yet, the jury awarded Hutcherson zero dollars in compensatory damages because Hutcherson’s wife failed to prove loss of consortium.  Twenty-nine days later, Hutcherson moved for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure.  The District Court denied the motion.

On appeal, Hutcherson alleged that (1) the District Court improperly admitted a medical evaluation into evidence; and (2) the jury’s award of zero damages is inconsistent with its verdict.

First, Hutcherson argued that a final medical evaluation from his physician was inadmissible hearsay.  The medical evaluation expressed uncertainty as to whether Hutcherson’s partial rotator cuff tear occurred during the incident at issue.  However, testimonial evidence was also offered.

In considering the District Court’s actions, the Fourth Circuit stated that it will not “set aside or reverse a judgment on the grounds that evidence was erroneously admitted unless justice so requires or a party’s substantial rights are affected.” Creekmore v. Maryview Hosp., 662 F.3d 686, 693 (4th  Cir. 2011).  The Fourth Circuit concluded that, even assuming that the District Court erred, the evidence was not sufficiently prejudicial to affect the outcome of the case.  As a result, the medical evaluation’s admission did not affect Hutcherson’s substantial rights. Thus, the Fourth Circuit would not set aside the District Court’s judgment on this basis.

Second, Hutcherson argued that the jury’s award of zero damages is inconsistent with its verdict. While the jury found that Hutcherson proved his assault and battery claims, Hutcherson did not object to the damages award until after the jury’s discharge.  As a result, the Fourth Circuit concluded that Hutcherson waived his objection to any alleged inconsistencies.

Thus, the Fourth Circuit affirmed the District Court’s order denying Hutcherson’s motion for a new trial.

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