Fourth Circuit Comes Close to Addressing FSA Questions

In an opinion released last week, the U.S. Court of Appeals for the Fourth Circuit came close to addressing the applicability of the Fair Sentencing Act of 2010 to certain defendants pending sentencing.  Ultimately, the opinion is noteworthy only for a footnote on page 18.  (Available here)

In Bullard, the court was faced with the question of whether the Fair Sentencing Act, which reduced mandatory sentencing disparities between defendants convicted of powder cocaine offenses and defendants convicted of crack cocaine offenses, applied retroactively to defendants sentenced before the FSA's enactment.  As every other circuit confronted with this issue has done, the court refused to apply the FSA's changes retroactively to the defendant.

However, in footnote 5, the court noted:

"We do not address the issue of whether the FSA could be found to apply to defendants whose offenses were committed before August 3, 2010, but who have not yet been sentenced, as that question is not presented here."

Many defense attorneys, federal prosecutors and district judges await the Fourth Circuit's guidance on this important issue for defendants pending sentencing.


Posted by Brennan Sullivan and McKenna

Bill Brennan to Testify Before U.S. Sentencing Commission

Bill Brennan will testify today before the United States Sentencing Commission on behalf of the Practitioner's Advisory Group.  The subject of Bill's testimony will be proposed amendments and draft language to certain sentencing guidelines related to arms trafficking (Sections 2K2.1 and 2M5.2).

The Commission's hearing agenda is here and Bill's proposed comments are here.


Posted by Brennan Sullivan and McKenna

Fourth Circuit Reverses Conviction Because of Illegal Seizure

United States of America v. David Foster, No. 09-5161 (4th Cir. March 2, 2011). Available here.

The U.S. Court of Appeals for the Fourth Circuit reversed and remanded a case involving the warrantless seizure and search of a man in North Carolina.  The facts of the case are straight-forward, as is the court’s analysis: two young black men were sitting in a parked SUV outside of a local restaurant.  A police officer walked by the men and noticed that one of them mouthed something to the other.  The man in the passenger seat sat up straight, and then began moving his arms, as though he was doing something with his hands.  The officer called his headquarters and was informed that one of the young men was “under investigation.”  After a few minutes, the officer approached the men, seized them and searched their vehicle.

Of course, in order to stop or seize a person, police must have a “reasonable and articulable suspicion that the person seized is engaged in criminal activity.”  The court of appeals any suspicion in this case to be more of a hunch (the officer himself told the young men prior to the search that he “knew they were up to something”) than an articulable suspicion.

The significance of this opinion, from a defense attorney’s perspective, is not in the underlying facts or the court’s analysis.  Rather, it is the following passage:

“We also not our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity. . . . we find it particularly disingenuous of the Government to attempt to portray these arm movements as ominous. . . . Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception. . . . the Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband.”


Posted by Brennan Sullivan and McKenna

Supreme Court Widens Sentencing Courts' Discretion on Remand

Pepper v. United States, No. 09-6822 (March 2, 2011)

In an opinion filed yesterday, the Supreme Court held that upon the resentencing of a defendant in federal court, the sentencing court may--and should--take into account the defendant's post-sentence rehabilitation.  Prior to this ruling, there was confusion among federal courts as to the types of considerations that are relevant for a court to take into account on resentencing.  This opinion will not impact many offenders, but will serve to assist those defendants fortunate enough to have their sentences vacated and remanded on appeal, and who have made strides at self-betterment since their original sentence.  Of course, as is noted by the Court, a court on resentencing is not limited to only consider the positive post-sentencing conduct of the defendant, but also the negative.  The opinon is available here.

Posted by Brennan Sullivan and McKenna

Fourth Circuit Faults All Parties, Vacates and Remands

United States v. Lorenzo Martez Lewis, No. 09-4467 (4th. Cir. Feb. 2, 2011) (available here)

In a case decided this week, the U.S. Court of Appeals for the Fourth Circuit took issue with either mistakes made, or arguments advanced by all parties.

In the district court below, the defendant entered into a plea agreement with the government pursuant to Rule 11(c)(1)(C) (a "C" plea).  Unlike most plea agreements entered in federal courts, a C plea is binding upon the judge -- so long as the court accepts the plea and the terms of the agreement.  Should the court reject any of the terms of the agreement, the defendant is given the opportunity to withdraw his plea of guilty.

In Lewis, the court below accepted the defendant's plea of guilty, but refused to abide by the terms of the plea agreement -- namely, that any sentence imposed would run concurrent to the state court sentence the defendant was already serving.  While the court had discretion to reject the plea agreement, it had no discretion to alter the terms of the agreement without giving the defendant the opportunity to withdraw his plea.  In the end, the court sentenced the defendant to a term of imprisonment to run consecutive to any other sentence the defendant was already serving.

On appeal, the defendant's appellate counsel filed a brief pursuant to Anders v. California, essentially submitting that there were no meritorious issues for appeal, but requesting that the Court of Appeals consider whether the district court had erred in sentencing the defendant to a consecutive term of imprisonment.  The defendant also submitted a pro se submission to the Court stating that the plea agreement was supposed to be binding on the Court, if the Court accepted it.  The government's appellate counsel argued that the parties never "intended or understood the concurrent sentence provision to be an agreement for a specific sentence under Rule 11(c)(1)(C).

The Court had little difficulty in analyzing the issue presented.  The government and the defendant entered into a sort of contract which, if accepted by the district court, would be binding.  The agreement specifically stated that "the sentence of imprisonment shall be served concurrent with the state sentence."  The district court in this case, however, never explicitly rejected (and tacitly accepted, albeit partially) the plea agreement.  The defendant was not given an opportunity to withdraw his guilty plea.  And notably, "the prosecutor failed to correct the court's misunderstanding of the concurrent sentence provision."  The Court noted that the government's failure to uphold its obligations under the agreement constituted a breach.

"The government's contention that the parties actually intended and understood the concurrent sentence provision to be a mere recommendation is - put mildly - nearly frivolous."

The Court vacated the defendant's conviction and sentence, and remanded the case.  The defendant himself is the only person that came out of this decision without drawing major criticism from the Court of Appeals.

Posted by Brennan Sullivan and McKenna

Fourth Circuit Vacates Improper Leadership Enhancement

 United States v. Kevin M. Slade, No. 08-4932 (Decided Jan. 27, 2011).

In an opinion filed yesterday (available here), the Fourth Circuit vacated and remanded a case for sentencing where a district court erroneously applied an aggravating leadership enhancement to a defendant in a drug conspiracy.

At the time of sentencing, the district court applied a three-level enhancement to the defendant's guidelines calculation because of his aggravating role as a manager or supervisor of other participants in the drug conspiracy.  (U.S.S.G. 3B1.1).  This enhancement is reserved for defendants who "control the activities of other participants" or exercise managerial responsibility.

The district court applied the enhancement, to which the defendant did not object, on the basis of the following factors: the defendant sold powder and crack cocaine to other co-conspirators (who in turn sold it to others), the defendant was driven around by a co-conspirator during the course of the drug conspiracy, and some of the co-conspirators sold drugs "for" the defendant.  However, the Fourth Circuit held that there was insufficient evidence in the record that the defendant actually directly supervised anyone, or managed the operations.

The Court of Appeals remanded the case for re-sentencing, at which time the district court will have the opportunity to find facts that may increase the defendant's sentencing exposure under this enhancement, anyway.

Posted by Brennan Sullivan and McKenna

Maryland High Court Affirms Common Law Prohibition on Improper Inducements

Enoch Jermaine Hill v. State of Maryland, No. 149, September Term, 2009 (Maryland Court of Appeals) (Filed Jan. 26, 2011).

In an opinion filed today (available here), the Court of Appeals held that a detective's statement to a suspect constituted an improper inducement.  The case was one of child sexual abuse, where a former youth pastor was the suspected abuser and the victim was a former member of the pastor's congregation. 

During an interrogation, a detective told the suspect that the victim "and his mother do not want to see you get into trouble, but they only want an apology."  Believing  the detective was hinting that if he wrote an apology note, the suspect would not be further prosecuted, the suspect wrote a (nonsensical) letter of apology to the victim.  Because the suspect in the case relied on the indirect inducement, the suspect's subsequent confession and letter of apology will be inadmissible in a new trial.

This case is important in that it reaffirms the place that Maryland's common law prohibition on improper inducements has in today's justice system.

Posted by Brennan Sullivan and McKenna