By: Emily Wilmink

In 1971, President Richard Nixon launched the “War on Drugs” that drastically increased the role of the federal government in controlling illegal drug use.[1] However, this measure led to the mass incarceration of nonviolent drug offenders, and today, continues to shape a federal system that disproportionately convicts communities of color.[2] Within this system, the disproportionate convictions stem from marijuana use,[3] so many Senators have proposed legislation that would legalize the drug and ultimately stop subsequent arrests. However, Senator Elizabeth Warren has taken legislative action a step further by proposing a federal cannabis pardon.[4] This cannabis pardon could release millions of nonviolent drug offenders and bring justice to communities of color that have been targets of the War on Drugs for years.

Between 2010 and 2018, more than six million drug arrests occurred in the United States.[5] Specifically, in 2018, nearly 700,000 people were arrested for marijuana use, which made up 43% of the total drug arrests in the country.[6] Of those marijuana arrests, 89.6% were for mere possession of marijuana.[7] In 2019, the FBI reported 545,602 arrests for cannabis-related crimes, which was 9% higher than the 495,871 arrests for violent crimes in the same year.[8] Further, similar to the numbers in 2018, in 2019, 92% of the marijuana arrests were for mere possession of the drug.[9] While marijuana arrests already make up a large portion of the overall drug arrests in the United States, out of these arrests, Black Americans are 3.64 times more likely than White Americans to be arrested for marijuana use even though both groups use marijuana at the same rates.[10] Additionally, the ACLU reports that in thirty-one states, racial disparities in arrest rates were larger in 2018 than in 2010.[11]

Currently, twenty-seven states have decriminalized possession of certain marijuana amounts, and thirty-six have legalized marijuana for medicinal purposes.[12] Under the Controlled Substances Act of 1970, marijuana is a Schedule I substance, meaning “it has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision.”[13] However, many drug policy experts have pointed out that the Controlled Substance Act is “flawed, outdated, and unscientific,”[14] so many legislators have been pushing drug reform to the top of legislative priorities in recent years. For example, in late July of 2021, Senator Charles Schumer, Senator Ron Wyden, and Senator Cory Booker introduced the Cannabis Administration and Opportunity Act in the Senate to effectively lessen the regulation of marijuana.[15] Specifically, this bill was intended to “expunge federal convictions of nonviolent marijuana charges, remove the drug from the Controlled Substances Act, and set up a system to tax marijuana in states that legalize it.”[16] The Cannabis Administration and Opportunity Act would also “empower[] states to implement their own cannabis laws.”[17]

To remedy the mass incarceration of marijuana offenders, and its disproportionate impact on offenders of color, Senator Elizabeth Warren has recently proposed a federal cannabis pardon that, if implemented, would pardon the cannabis convictions of nonviolent offenders, and ultimately expunge their criminal record of such an offense.[18]  Under the Constitution, the President has the power to “grant Reprieves and Pardons for Offenses against the United States.”[19] Except in the cases of impeachment, the Presidential pardon power extends to all federal offenses and may be used at any point after the offense is committed.[20] While the president may use this power to pardon individual offenders, the president can also “issue a general amnesty to a class of people.”[21] Therefore, President Biden, at the federal level, has the authority to pardon marijuana-related offenses without disrupting the Controlled Substances Act.[22]

The efforts of Senator Charles Schumer, Senator Ron Wyden, and Senator Cory Booker in their work on the Cannabis Administration and Opportunity Act undoubtedly illustrate positive progress in the field of drug reform. However, in conjunction with those efforts, Senator Elizabeth Warren’s proposal for a federal cannabis pardon would further rectify the discriminatory actions that were waged against communities of color since the onset of the War on Drugs. In a letter to President Biden, Senator Warren explained a mass cannabis pardon would “mark the beginning of a reversal of decades of ineffective and discriminatory cannabis policies, allowing Americans to return to their communities, find housing and jobs, and rebuild their lives without the burdens of an unjustly imposed criminal record.”[23] Ultimately, the federal cannabis pardon will be a promising proposal to watch in the new year, and if implemented, will bring justice to a system that is intended to provide equality to all.

[1]A History of the Drug War: The Early Stages of Drug Prohibition, Drug Pol’y All., (last visited Jan. 11, 2022).

[2] Id.

[3] ACLU, A Tale of Two Countries: Racially Targeted Arrests in the Area of Marijuana Reform 21 (2020),

[4] Kyle Jaeger, Elizabeth Warren Pushes Biden To Do Mass Marijuana Pardons With The ‘Stroke Of A Pen,’ Marijuana Moment (Nov. 19, 2021),

[5] A Tale of Two Countries, supra note 3, at 5.

[6] Id.

[7] Id. at 7.

[8] Emily Earlenbaugh, More People Were Arrested for Cannabis Last Year Than For All Violent Crimes Put Together, According to FBI Data, Forbes (Oct. 6, 2020),

[9] Id.

[10] A Tale of Two Countries, supra note 3, at 5.

[11] Id.

[12] Lexi Lonas, Warren Presses Biden On Pardons For Nonviolent Cannabis Convictions, The Hill (Nov. 10, 2021, 3:30 PM),

[13] Drug Fact Sheet: Marijuana/Cannabis, Dep’t of Just. (Apr. 2020),

[14] Removing Marijuana From the Schedule of Controlled Substances, Drug All. Pol’y (Jan. 10, 2019),

[15] Lexi Lonas, Senate Democrats Unveiling Push to Legalize Marijuana at Federal Level, The Hill (July 14, 2021, 8:28 AM),

[16] Id.

[17] Senator Cory Booker et al., Cannabis Administration & Opportunity Act: Discussion Draft 1, (last visited Jan. 11, 2021).

[18] Jaeger, supra note 4.

[19] Does the President Have the Power to Legalize Marijuana?, Cong. Rsch. Serv. 3 (Nov. 4, 2021),

[20] Id.

[21] Id.

[22] Id.

[23] Elizabeth Warren (@SenWarren), Twitter (Nov. 10, 2021, 6:02 PM),

By Megan M. Neal

As the public tracks the development of a viable SARS-CoV-2 (“COVID-19”) vaccine, there has been rampant proliferation of fake COVID-19 cures. Indeed, the Food and Drug Administration (“FDA”) has identified a host of products fraudulently marketed to diagnose, treat, or cure COVID-19.[1] Many of these products are faulty, but relatively harmless: fake antibody testing kits and ineffective hand sanitizer, for instance.[2] However, some scientists, frustrated with the lengthy process of testing and approving vaccines, have sought to develop and administer their own COVID-19 vaccines.[3]

Three projects in particular have garnered public attention. The Rapid Deployment Vaccine Collaborative (“RaDVaC”) has “designed, produced, and self-administered several progressive generations of nasal vaccines against SARS-CoV-2.”[4] Its collaborators are publicly listed, as are instructions for making the vaccine.[5] RaDVaC aims to publicize how to make this vaccine, but does not intend to sell the vaccine.[6] So far, collaborators have administered the vaccine to themselves, family, and friends.[7]

Another collaboration, CoroNope, seeks funding to develop a vaccine for eventual public availability.[8] CoroNope collaborators are anonymous, citing fears of repercussions from employer and the FDA.[9] The group acknowledges that any treatment it creates will likely not “be adopted by the medical community in any official sense.”[10]

Finally, an individual, Johnny T. Stine, developed, sold, and administered a vaccine purporting to (1) immunize uninfected recipients against COVID-19 and (2) cure recipients infected with COVID-19.[11] Stine has a background in antibodies through his company, North Coast Biologics, LLC, which focuses on antibody research.[12] Stine’s COVID-19 vaccine development process was dubious. He “tested the product only on himself and potential[ly] a family member.”[13] After doing so, he deemed the vaccine effective and advertised it—at a cost of $400 per person—on Facebook and LinkedIn.[14] Despite some negative responses, these social media advertisements did generate customers for Stine: he inoculated about thirty individuals living in Washington, Montana, Arizona, and Texas.[15]

The manufacture and distribution of homemade or unapproved drugs is not entirely without precedent. For instance, in 2017 a Chicago pediatrician voluntarily surrendered his medical license after altering allergy shots with cat saliva and vodka.[16] Additionally, courts have held against drug manufacturers that distributed unapproved new drugs.[17] In United States v. X-Otag Plus Tablets,[18] a federal district court held that a new drug could be seized, and the manufacturer could be enjoined from further producing the drug, which had not been approved by the FDA prior to distribution.[19] Ultimately, the court accepted the government’s expert testimony that the drug was not “safe and effective” over testimony from the manufacturer’s experts.[20]

Accordingly, RaDVaC, CoroNope, and Stine’s vaccine present a host of legal issues. In fact, Stine has already faced legal action. The Attorney General of Washington sent him a cease and desist letter in April,[21] and the FDA and the Federal Trade Commission sent him a warning letter in May.[22] In June, the Washington Attorney General pressed charges against Stine under Washington’s unfair and deceptive trade practices statute.[23] The parties ultimately reached a settlement in which Stine agreed to offer restitution to all vaccine recipients by refunding the $400 charge.[24] Additionally, the Consent Decree enjoined Stine from further producing or distributing the vaccine[25] and required him to make a monetary payment.[26]

RaDVaC and CoroNope, on the other hand, have not yet faced disciplinary or legal action.[27] Nonetheless, RaDVaC has sought some legal protection. The group consulted an attorney,[28] and the group lists disclaimers on the document detailing how to develop and administer its vaccine.[29]

These projects are not necessarily immune from liability, though. In March, the Department of Health and Human Services published a Notice of Declaration shielding COVID-19 drug manufacturers from potential liability in some circumstances.[30] However, manufacturers that engage in “willful misconduct” are not shielded from liability.[31] As used in the Notice of Declaration, “willful misconduct” means “an act or omission that is taken (i) intentionally to achieve a wrongful purpose; (ii) knowingly without legal or factual justification; and (iii) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.”[32] Notably, neither the Notice of Declaration nor the relevant statutory guidelines define “wrongful purpose,” likely leaving the definition to judicial interpretation. Given the exigent need for a COVID-19 vaccine, however, a court may determine that RaDVaC and CoroNope’s decisions to fast-track a their vaccines does not constitute a “wrongful purpose.”

The Federal Food, Drug, and Cosmetic Act (“FD&C Act”) may also pose an issue for homemade vaccine developers. The FD&C Act restricts misbranded and unapproved drugs.[33] It further prohibits introducing such drugs into interstate commerce.[34] Critically for consumers, the FD&C Act does not allow a private right of action.[35]

Additionally, under the Public Health Service Act (“PHS Act”), unlicensed biological products may not be marketed.[36] The PHS Act also bans the use of unlicensed biological products in humans without proper licensing.[37]

Accordingly, the aforementioned collaborations’ actions may result in legal liability. For instance, one RaDVaC collaborator stated that approximately 30 individuals in the United States and other countries have been inoculated with RaDVaC’s vaccine.[38] However, as the collaboration simply publishes instructions for making its vaccine, but does not actually make and distribute it, it remains unclear whether the vaccine has been introduced into interstate commerce. And, as of now, neither RaDVaC nor CoroNope’s products are licensed biological products as required for use in humans by the PHS Act.

Furthermore, should any recipients be injured as a result of these homemade vaccines, these collaborations may face liability for participants’ injuries, depending on whether the collaborations’ actions are deemed “willful misconduct.”

Liability may also depend on the scale of these projects. One RaDVaC project collaborator posits that the group has not yet faced legal or disciplinary proceedings because the project is relatively small. RaDVaC collaborators have not sold or advertised the vaccine beyond friends and family, and the project has received minimal media attention.[39] Accordingly, should these projects expand or change—perhaps by making and selling the vaccines they have designed—their legal situation may change as well.

[1] Fraudulent Coronavirus Disease 2019 (COVID-19) Products, FDA, (last updated Sep. 21, 2020).

[2] See id.

[3] Heather Murphy, These Scientists Are Giving Themselves D.I.Y. Coronavirus Vaccines, N.Y. Times (Sept. 1, 2020),

[4] RaDVaC Mission, Rapid Deployment Vaccine Collaborative, (last visited Sept. 22, 2020).  

[5] Rapid Deployment Vaccine Collaborative, SARS-CoV-2 (2019-nCoV) Vaccine (2020),

[6] Murphy, supra note 3.

[7] Antonio Regalado, Some Scientists Are Taking a DIY Coronavirus Vaccine, and Nobody Knows If It’s Legal or If It Works, MIT Tech. Rev. (July 29, 2020),

[8] CoroNope, CoroNope: A Crowdsourced SARS-CoV-2 Vaccine (2020),

[9] Murphy, supra note 3.

[10] CoroNope, supra note 8, at 1.

[11] Complaint, State v. Stine, No. 20-2-09935-0 SEA (Wash. Super. Ct. June 12, 2020),

[12] Id. at 2. Additionally, the Complaint notes that it appears North Coast Biologics was administratively dissolved in 2012, but Stine may have continued to operate under the name of the company. Stine marketed his vaccine through North Coast Biologics’ Facebook page. Id. at 7.

[13] Id. at 8.

[14] Id. at 5.

[15] Id. at 9.

[16] Vikki Ortiz, Doctor Could Lose License After Giving Vaccines Made with Cat Saliva, Vodka, Chi. Trib. (Oct. 20, 2016),; Search for a License, Ill. Dep’t of Fin. & Pro. Regul., (select “Medical Board” License Type and search First Name “Ming” and Last Name “Lin,” from the results select the listing for “Ming Te Lin MD”).

[17] See, e.g., United States v. Pro-Ag, Inc., 968 F.2d 681, 682 (8th Cir. 1992) (holding that products intended for animal use qualified as drugs because they were “intended to alter the structure or function of the body of animals,” and that “the products have never been approved as animal drugs and, therefore, they may not be sold interstate without such approval under section 331(a) of the Federal Food, Drug, and Cosmetic Act”); United States v. Undetermined Qualities of Articles of Drug, 145 F. Supp. 2d 692, 704 (D. Md. 2001) (holding that injunctive relief was proper to bar defendants from manufacturing and distributing misbranded, unapproved new drugs because the government “establish[ed] that the Defendants violated the FDCA and that there exists ‘some cognizable danger of recurrent violation . . . .’” (quoting United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953))); United States v. Richlyn Labs., Inc., 822 F. Supp. 268, 274 (E.D. Pa. 1993) (holding that “[t]he issuance of a permanent injunction enjoining the Defendants from manufacturing, processing, packaging and distributing their drug products until such time as they are in full compliance with Current Good Manufacturing Practices and the Federal Food, Drug, and Cosmetic Act is the only appropriate remedy available to safeguard and protect the public health, safety and welfare”).

[18] 441 F. Supp. 105 (D. Colo. 1977).

[19] Id. at 107.

[20] Id. at 114.

[21] Cease and Desist Letter from Bob Ferguson, Att’y Gen. of Wash., to Johnny T. Stine, North Coast Biologics (Apr. 23, 2020),

[22] Warning Letter from Center for Biologics Evaluation and Research, FDA, to Johnny T. Stine, North Coast Biologics (May 21, 2020),

[23] Complaint, State v. Stine, supra note 11, at 9–10.

The Complaint alleges that Stine’s “unfair and deceptive conduct in trade or commerce” included: “misrepresenting the health benefits of the purported “vaccine” [Stine and North Coast Biologics] developed and marketed”; “representing that the product [Stine and North Coast Biologics] developed could vaccinate consumers against COVID-19 without adequate scientific substantiation for these representations”; “offering a product they represented to be a vaccine without adequately testing the product’s effectiveness or safety for use in humans”; “representing that Stine was immune from COVID-19 without adequate scientific administration”; and “offering to cure a human disease, ailment, or condition without a medical license.” Id. Washington’s unfair and deceptive trade practice statute reads in full: “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Wash. Rev. Code § 19.86.020.

[24] Consent Decree, State of Washington v. Stine, NO. 20-2-09935-0 SEA, at 4–5 (Wash. King Cty. Super. Ct. 2020),

[25] Id. at 3–4.

[26] Id. at 5–6.

[27] Regalado, supra note 7.

[28] Id.

[29] Rapid Deployment Vaccine Collaborative, supra note 5, at 2–5.

[30] Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198, 15,198 (Mar. 17, 2020). The Public Readiness and Emergency Preparedness Act authorized this action. See 42 U.S.C. §§ 247d-6d, 6e.

[31] Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. at 15,198.

[32] 42 U.S.C. § 247d-6d.

[33] 21 U.S.C. §§ 321–399i.

[34] Id. § 331. The FDA noted these prohibitions in its Warning Letter to Stine.

[35] Id. § 327.

[36] 42 U.S.C. § 262.

[37] Id.; see also 21 U.S.C. § 355(i); 31 C.F.R. § 312 (governing “procedures and requirements governing the use of investigational new drugs, including procedures and requirements for the submission to, and review by, the Food and Drug Administration of investigational new drug applications”). The FDA noted these prohibitions in its Warning Letter to Stine.

[38] Murphy, supra note 3.

[39] Regalado, supra note 7.

R.F. v. Cecil County Public Schools

This case is a civil case where the parents of a child with disabilities challenged an administrative law judge’s determination that Cecil County Public Schools (“CCPS”) had fulfilled its obligation to provide the child with a free appropriate public education under the Individuals with Disabilities Education Act (“IDEA”). There were four issues on appeal: (1) whether CCPS failed to educate the “least restrictive environment” (usually, alongside children who are not disabled); (2) whether CCPS failed to sufficiently implement classroom placement in the child’s Individualized Education Program (“IEP”); (3) whether CCPS denied the child’s parents the right to participate in her education; and (4) whether CCPS provided an appropriate IEP for the child. The administrative law judge and the district court both found that any procedural violations CCPS committed did not substantively deny the child from a free appropriate public education. The Fourth Circuit held that CCPS did violate some procedural requirements of the IDEA, but that overall CCPS did not deny the child a free appropriate public education under the IDEA. Thus, the Fourth Circuit affirmed the district court’s decision. 

Lance Belville v. Ford Motor Company

Ford Motor Company (“Ford”) was sued by a group of individuals and corporations (“Plaintiffs”) for an alleged defect in Ford vehicles manufactured between 2002 and 2010. In total there are twenty-seven individual and two corporate Plaintiffs who had purchased or leased Ford vehicles with these alleged defects. The district court excluded the opinions of the Plaintiffs’ experts, dismissed various claims of certain Plaintiffs and ultimately granted summary judgment to Ford on all remaining claims. The Fourth Circuit affirmed the district court judgment. The district court excluded the opinions of Plaintiff’s three experts based on their lack of relevance and reliability. The Fourth Circuit held that the district court provided a well-reasoned analysis of the experts’ theories and testing based on consideration of the appropriate Daubertfactors for the case. Those appropriate Daubertfactors included general acceptance of a theory within a relevant field, peer review, and the scientific valid of underlying methodologies used. Therefore, the Fourth Circuit held that the district court did not abuse its discretion when they excluded the experts from the proceeding. Ultimately, the Plaintiffs could not prove their theory of defect when their experts were excluded and thus the Plaintiffs could not meet the essential element of causation. Therefore, the district court’s grant of summary judgment on all claims to Ford was appropriate.

United States v. Justin Hawley

            In this criminal case, Defendant Justin Hawley (“Hawley”) pleaded guilty to two counts of distributing heroin and to two counts of being a felon in possession of a firearm. Hawley was sentenced to fifty-seven months in prison, in part because Hawley’s prior criminal history included a sentence of thirty days imprisonment for an uncounseled misdemeanor offense. The uncounseled misdemeanor offense that Hawley was imprisoned for thirty days for was for providing false information to a police officer and for failure to wear a seatbelt. Hawley argued “that the district court contravened the Sentencing Guidelines in calculating his criminal history by counting the prior uncounseled misdemeanor that resulted in imprisonment.” The Fourth Circuit affirmed Hawley’s fifty-seven month sentence. The Sentencing Guidelines (“Guidelines”), under U.S.S.G. § 4A1.2(c)(1), require the district court to count certain prior offenses when computing a defendant’s criminal history for sentencing, “only if (A) the sentence was a term or probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense.” Therefore, under the plain language of Guidelines, Hawley’s offense should be counted in calculating his prior criminal history. Based on this information, the Fourth Circuit held that the district court did not err in counting Hawley’s prior voluntarily uncounseled misdemeanor offense for which he was sentenced to 30 days imprisonment in calculating his criminal history and therefore the Fourth Circuit affirmed the imprisonment term for Hawley in this case.

United States v. Michael Smith

            In this criminal case, defendants Mark Bazemore, Michael Smith, Jr., and Timothy Hurtt all participated in the illegal activities of a Baltimore street and prison gang named the Black Guerilla Family. All three defendants were convicted because of their involvement in the gang’s drug dealing and violent acts they committed as members of the gang. The district court sentenced Bazemore to life, Hurtt to 324 months and Smith to 210 months. Bazemore and Hurtt were convicted for, among other things, first-degree murder and attempted murder. Smith was convicted of extortion and drug distribution under a racketeering conspiracy. Defendants sought to reverse their convictions for two main reasons. First, Defendants argued that “the district court improperly handled the fears some jurors expressed to the court after learning of this gang’s predilection for violence and retaliation.” Second, Defendants claimed that the district court should have excluded the expert testimony of an FBI agent regarding the decoding of intercepted phone calls. The Fourth Circuit rejected the challenges of the Defendants. The district court had excused three different jurors that were scared because of the nature of the case and the potential for violence against them or their families after the trial if Defendants were convicted. During the trial, the Government called an Agent James to provide expert interpretations of phone calls of gang members that had been recorded as part of an FBI investigation. Agent James was qualified as an expert in drug and gang terminology in Maryland and at trial he explained the meanings of several coded gang terms used in the recorded conversations. The Fourth Circuit found that the district court in questioning each juror individually after learning that Juror No. 5, one of the juror’s ultimately excused, was experiencing great fear from being on the jury. It is the job of the trial judge to determine if affected jurors can remain fair and impartial. In the opinion of the Fourth Circuit, the trial judge acted well within his discretion in denying the request for a mistrial after excusing the three jurors he believed could not be fair and impartial and keeping those jurors that assured him of their continued impartiality. The Fourth Circuit rejected the argument that the district court abused its discretion in admitting portions of Agent James’s expert testimony and that even if any improper opinion testimony from Agent James was heard by the jury it was harmless.

U.S. v. Jose Guzman-Velasquez

            This case is a criminal case in which Jose Benjamin Guzman-Velasquez (“Defendant”) was charged with the crime of illegal reentry when he returned to the United States after being deported. Defendant was removed from the United States in 2007, but sometime after returned and was convicted of three crimes. Subsequently, in 2016, a grand jury indicted Defendant for illegal reentry in violation of 8 U.S.C. § 1326(a). Guzman made a motion to dismiss the indicted, but the district court denied the motion. Guzman plead guilty and appealed. The issue was whether United States Citizenship and Immigration Services’ (“USCIS”) denial of Defendant’s Temporary Protected Status (“TPS”) application violated his Due Process rights, and whether under the Supreme Court case United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the due process principle extends beyond removal orders to TPS denials. The Fourth Circuit did not reach the question regarding the Mendoza-Lopezcase because they determined Defendant had not asserted a due process violation that resulted in fundamental unfairness. The Fourth Circuit held that USCIS did not error in denying Defendant’s TPS application and therefore affirmed the district court’s judgment. 

By: Matthew Welch & Gilbert Smolenski

On March 1, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for United States v. Brian Bowman.  The court held that Bowman’s Fourth Amendment right, freedom from unreasonable seizures, was violated and reversed the district court ruling.

I. Facts and Procedural History

In the predawn hours the morning of June 20, 2015, Officer Waycaster was patrolling on Route 25 in Henderson County, North Carolina.  He received a tip from the DEA that two individuals driving a red, older model Lexus could be narcotics runners.  The DEA also provided a license plate number for the car.  At 3:40 a.m., Officer Waycaster spotted an older red Lexus.  Rather than stopping the vehicle based on information from the DEA, Officer Waycaster followed the car “looking for [his] own infractions . . . for [his own] reason to stop the vehicle.”  When the vehicle weaved over a fog line and accelerated to 10 mph over the speed limit, Officer Waycaster pulled the vehicle over, suspecting that the driver may have been under the influence.  The government agrees that the DEA tip should not be considered in any legal analysis.

After stopping the vehicle, Officer Waycaster noticed two men in the vehicle: Bowman, the driver, and Alvarez, the passenger.  Officer Waycaster testified that Bowman appeared nervous because his hands were shaking, he failed to make eye contact with Waycaster, and that his carotid artery was moving, indicating an elevated heart rate.  Officer Waycaster did not see any alcohol or firearms in the vehicle, but he did notice an energy drink in the center console, food wrappers, and a suitcase in the back seat.  Officer Waycaster explained why Bowman was stopped and then asked Bowman to exit the vehicle and go to the patrol car so that Officer Waycaster could check his information.  Alvarez remained in the passenger seat the entire time.

After Bowman exited the vehicle, he consented to a weapons frisk.  Officer Waycaster found no weapons.  Officer Waycaster then told Bowman to sit in the patrol car while Waycaster ran his driver’s license and registration.  While Officer Waycaster was running Bowman’s information, he asked Bowman where he was coming from.  Bowman said that he was heading home after picking up Alvarez from Alvarez’s girlfriend’s house.  He said he was returning the favor because Alvarez had done the same for him in the past. When questioned about the address of Alvarez’s girlfriend’s house, Bowman said he did not know it but that it was in his car’s GPS.  Officer Waycaster also asked Bowman what he did for a living.  Bowman replied, saying that he was a welder but was currently unemployed.  Bowman also said that he recently bought the Lexus off Craigslist.  Officer Bowman testified that this was a suspicious activity because “it was a known practice with narcotics traffickers to either use rental vehicles or use multiple, different vehicles, or buy and sell vehicles to transport narcotics.”  Officer Waycaster, believing that Bowman was not under the influence, then issued Bowman a ticket for speeding and unsafe movement of the vehicle.

Bowman then began to exit the vehicle but Officer Waycaster asked if he could speak further with Bowman.  Bowman consented.  After another round of questions about what Bowman and Alvarez had been doing that night, Officer Waycaster, who was seated in the patrol car with Bowman said that he “was going to ask [Alvarez] questions if you don’t mind, okay?”  Bowman responded, “okay,” and remained in the vehicle.  As Officer Waycaster exited the patrol car he told Bowman, “just hang tight right there, okay.”  Bowman responded with, “oh, okay.”  Office Waycaster testified that at this point, Bowman was not free to get out of the patrol car because Waycaster had developed, from the traffic stop alone, reasonable suspicion of criminal activity.

Office Waycaster then went back to the Lexus and interviewed Alvarez about what had transpired before the two men were pulled over.  Alvarez’s story conflicted with Bowman’s.  Officer Waycaster then return to the patrol car and asked Bowman if there was meth in the Lexus, to which Bowman responded no.  Bowman then refused to let Officer Waycaster search the Lexus.  Thereafter, Officer Waycaster removed Alvarez from the Lexus and placed him in the patrol car with Bowman.  Then Office Waycaster summoned a K-9 team.  The K-9 team passed around the outside of the Lexus.  The dog alerted an officer that illegal narcotics were present in the vehicle.  Thereafter, Office Waycaster and the K-9 handler searched the interior of the car.  They found meth, digital scales, and containers of ammunition.

Bowman was charged with possession with intent to distribute methamphetamine.  Bowman filed a motion to suppress the methamphetamine evidence, arguing that Officer Waycaster unlawfully prolonged the completed traffic stop without consent or reasonable suspicion.  The district court followed the recommendation of the magistrate judge in denying the motion to suppress.  The magistrate judge admitted that Bowman was not free to leave the patrol car but that the prolonged detention was permissible because “Waycaster had a justified, reasonable suspicion that Defendant Bowman was engaged in criminal activity.” The judge said that the totality of the circumstances supported this finding.  Bowman then filed an appeal.

II. Standard of Review

The Fourth Circuit reviews the district court’s determination that the officer had a reasonable suspicion to prolong the traffic stop de novo.

III. Reasoning

First, a traffic stop must be reasonable.  Here, Bowman does not challenge the reasonableness of the traffic stop.  Bowman was swerving and traveling 10 mph over the speed limit.  Instead Bowman’s Fourth Amendment challenge rests on the unreasonableness of his prolonged detention in the patrol car. The Fourth Amendment allows an officer to conduct an investigation unrelated to the reasons for the traffic stop as long as it does not lengthen the roadside detention.  To extend the length of the detention beyond the time necessary to accomplish the traffic stop’s purpose, an officer must have reasonable suspicion or receive the driver’s consent.  Here, the officer did not receive Bowman’s consent or have a reasonable suspicion.

The government argued that Bowman consented to the prolonged detention when he said “okay” after Officer Waycaster asked him to “hang tight right there, ok?”  However, under a reasonable person standard, the court said that this was not consent by Bowman.  Bowman never had time to respond to Officer Waycaster before Waycaster exited the vehicle and many would feel they were not free to leave in a similar situation. Furthermore, Waycaster was not asking a question, instead he was instructing Bowman what to do.  Thus, when Bowman remained in the patrol car as the officer went to question Alvarez, the encounter was no longer a consensual one but instead became a non-consensual seizure.

After the Fourth Circuit concluded the search constituted a non-consensual seizure, the Court then analyzed whether Waycaster’s “prolonged seizure was justified by reasonable suspicion.”  The Court noted there is no precise definition for what constitutes reasonable suspicion.  Instead, reasonable suspicion is a commonsense, nontechnical standard that considers the realities of everyday life.  The bar for reasonable suspicion is less than the probable cause standard and the facts articulated by the stopping officer and trial court must be taken in their totality.  However, each factor can be analyzed separately by the court before being taken together in a full consideration of the circumstances surrounding the traffic stop.

The Fourth Circuit focuses on four specific factors in its analysis.  First, Waycaster noted that both Bowman and Alvarez appeared to be nervous.  However, a driver’s nervousness is not a good indicator since most citizens are nervous when dealing with police.  The record indicated that Bowman and Alvarez did not exhibit any signs of nervousness above the norm, and the government conceded Bowman was calm once exiting the vehicle.  Moreover, although a suspect’s increased heart rate, which can be evidenced by a suspect’s throbbing carotid artery, can help support there was a reasonable suspicion of criminal activity, the present facts do not show Bowman demonstrated nervousness beyond the norm. The fact that Bowman remained calm in the patrol car and failed to make eye contact with an officer is not indicative of criminal behavior.  Thus, the first factor weighed in favor of the Bowman.

Second, Waycaster stated that several articles in the car, specifically clothes, food, and an energy drink, helped give rise to a reasonable suspicion.  However, these items are consistent with innocent travel and “in the absence of contradictory information,” cannot reasonably imply criminal activity.  While Bowman may have made false statements about his travel plans, the government failed to connect that fact to any wrongdoing in the case.  Therefore, just the articles alone cannot be used to established untruthfulness, and subsequently reasonable suspicion.

Third, the district court noted that Bowman’s inability to recall Alvarez’s girlfriend’s address contributed to Waycaster’s reasonable suspicion.  But, the Fourth Circuit stated this was entirely reasonable, as it is clear from the video recording that Bowman repeatedly said he used the car’s GPS to find the house, and Waycaster could find the address by looking at the car’s GPS history.  The government failed to connect Bowman’s response with criminal activity, and the Fourth Circuit stated it is reasonable that Bowman did not know the address and was relying on GPS in a dark, unfamiliar area.

Finally, Waycaster believed Bowman’s vehicle purchases gave suspicion of criminal activity since he thought it was strange Bowman could afford to purchase multiple vehicles while unemployed and the use of multiple cars was a known practice of drug traffickers.  The Fourth Circuit readily disposed of Bowman’s vehicle purchasing habits, noting that Waycaster made “unsubstantiated assumptions.”  Even though Bowman was unemployed, there are numerous possible explanations to explain the car purchases that are all within the confines of the law.  Likewise, innocent travelers may use multiple vehicles, some of which they could buy from Craigslist, and that fact is entitled to little weight.

Consequently, none of the factors alone provide a basis for reasonable suspicion.  Even when looking at the totality of the circumstances, as mandated by precedent, the Fourth Circuit similarly found that the “combination of wholly innocent factors” did not give rise to reasonable suspicion.  Therefore, the Fourth Circuit reversed the district court, as Bowman’s motion to suppress should have been granted.


By: Kristina Wilson

On Monday, January 30, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Dozier. The Fourth Circuit affirmed the Southern District Court of West Virginia’s designation of the defendant as a career offender and also held that the defendant’s prior state conviction under West Virginia law constituted a controlled substance offense under § 4B1.2 of the Sentencing Guidelines.

Facts and Procedural History

In April of 2015, the defendant pled guilty to violating 21 U.S.C. § 841(a)(1) by knowingly distributing a set quantity of crack cocaine. The court used the modified categorical approach to hold that the defendant’s two prior state convictions were “controlled substance offenses” under § 4B1.2 of the Sentencing Guidelines. The court consequently determined that the defendant should receive career offender status. On appeal, the defendant argued that the second of his two prior state convictions did not qualify as a controlled substance offense and that consequently, he should not be termed a career offender.

The District Court Should Not Have Used the Modified Categorical Approach

When determining whether to apply a Guideline sentencing enhancement, courts use a categorical inquiry to determine whether a defendant was convicted of a crime that qualifies as a predicate offense. However, when a statute is “divisible,” courts deviate from this categorical approach to apply a modified categorical approach. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). A “divisible” statute lists elements in the alternative and defines multiple crimes. Id.

The modified categorical approach consults particular documents to ascertain of what crime and with what elements a court convicted a defendant. Id. Courts should only use the modified categorical approach in limited circumstances. Where a statute defines an offense broadly and is not divisible, the modified categorical approach “has no role to play.” Cabrera-Umanzor, 728 F.3d at 350 (quoting Descamps, 133 S. Ct. at 2285).

Thus, the Fourth Circuit’s first task was to determine if the West Virginia statute under which the District Court convicted the defendant was divisible and therefore subject to the modified categorical approach. While the Fourth Circuit conceded that the statute could be “generally divisible,” it argued that such general divisibility was not sufficient to apply the modified categorical approach without first engaging in the following two-part inquiry: (i) Was the state statute’s definition of “attempt” consistent with the generic definition of “attempt” in the career offender enhancement? United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1240 (9th Cir. 2014), and (ii) Was the underlying state offense a categorical match for the Guideline predicate offense? Id. The Fourth Circuit stated that the District Court should not have applied the modified categorical approach without first engaging in these analyses.

West Virginia’s Attempt Statute Is A Categorical Match For the Generic Definition of Attempt

West Virginia’s attempt statute requires both specific intent to commit the underlying crime and an overt act in furtherance of that crime. Similarly, Fourth Circuit precedent defines “attempt” as requiring both culpable intent to commit the charged crime and a substantial step toward committing the crime. The Fourth Circuit argued that the intent requirement in the West Virginia statute was no broader than that of the Fourth Circuit statute and that the act elements in each statute were consistent; each required more than preparatory acts that strongly indicated criminal intent. Therefore, the Fourth Circuit held that the statutes were substantially similar and were a categorical match.

The Prior State Conviction Was A “Controlled Substance Offense”

The Fourth Circuit held that the West Virginia controlled substance statute was no broader than § 4B1.2 of the Sentencing Guidelines. West Virginia Code § 60A-4-401 prohibits the manufacture, delivery, or possession with intent to manufacture or deliver of controlled substances. Sentencing Guideline § 4B1.2 proscribes the manufacture, importation, exportation, distribution, or dispensation of controlled substances. Thus, the two acts have substantially similar intent and action requirements, and the defendant’s underlying offense was a categorical match of a generic controlled substance offense.


The District Court erred in applying the modified categorical approach before analyzing the two inquiries above. However, the District Court reached the proper result in classifying the prior state conviction as a “controlled substance offense” and in classifying the defendant as a career offender. Consequently, the Fourth Circuit affirmed.




By Paige Topper

On December 10, 2015, in the criminal case of United States v. Daniel Blue, a published opinion, the Fourth Circuit reversed Daniel Blue’s (appellant) prior convictions of conspiracy and possession with the intent to distribute heroin due to insufficient evidence.

Surveillance on Blue Leading to His Arrest

Using the cooperation of a fellow heroin distributor, officers set up a controlled heroin buy in the hopes of arresting a known middleman, Keith Townsend. During the staged buy, officers watched Blue interact with their target in what appeared to be a drug deal with Blue giving Townsend heroin folded into a slice of bread. Two weeks later the officers decided to start tracking Blue by placing a hidden GPS on Blue’s vehicle.

In their surveillance of Blue’s whereabouts the officers followed Blue to Fox Hall apartment complex where they watched Blue enter the apartment building empty-handed and return about five minutes later with a cloudy white, plastic container in his hand. The officers then followed Blue to a lake in Baltimore County known for narcotics transactions. Blue entered into a vehicle with another male, Jamar Holt, and drove around the lake in Holt’s car before returning to his own vehicle. The officers followed Holt under the assumption that a drug transaction between Holt and Blue had occurred. Holt ultimately escaped the officers. After this failed attempt, the officers went to the new address that Blue was at, according to the GPS, and arrested Blue upon his departure from a residence on Sinclair Lane. Ultimately, a grand jury convicted Blue of conspiracy to distribute heroin and possession with intent to distribute heroin.

Insufficient Evidence for Possession with Intent to Distribute 

First the Fourth Circuit addressed Blue’s sufficiency of the evidence argument for the possession with intent to distribute 100 grams or more of heroin conviction. This conviction referred to 108.6 grams of heroin located in one of the Fox Hall apartment units hidden in a footstool. The standard of review for this evidence was whether such evidence could support a rational determination of guilt beyond a reasonable doubt. The government argued there was enough evidence because the officers watched Blue enter and leave the Fox Hall apartment building and that Blue lied to the officers about not being at that location.

The Fourth Circuit noted that the two principal issues with this count were (1) whether Blue knew the 108.6 grams of heroin was in the footstool in the front bedroom of the apartment unit and (2) whether Blue had the power to exercise dominion and control over the heroin. Dominion and control cannot be established by mere proximity to the drug, by mere presence on the property where the drug is found, or by mere association with the person who does control the drug.

Although the officer’s observed Blue entering and exiting the apartment building, they did not see Blue enter the specific apartment unit where the heroin was found nor did they see Blue interact with the occupants of the apartment unit in question. Therefore, the Fourth Circuit determined there was insufficient evidence to establish Blue’s possession of the heroin found in the footstool. The  government argued that Blue was using the apartment as a stash house and thus had constructive possession of the heroin. The Fourth Circuit declared that the government did not provide constructive notice of the heroin through proof that Blue resided or leased the apartment, that Blue’s personal possessions were in the apartment, or that Blue was associated with the occupants of the apartment. As a result of the lack of connection between Blue and the occupants of the apartment, the government’s theory of a stash house was found to be unreasonable. The complete lack of connection between Blue and the heroin convinced the Court that the evidence did not support a rational determination of guilt beyond a reasonable doubt.

The Fourth Circuit also rejected the government’s reliance on case law that suggested the holder of a key has constructive possession of the contents in the apartment. In particular, the Court noted that no Fourth Circuit case had ever adopted the overly broad statement of the law derived from the Eighth Circuit. Moreover, the Eighth Circuit itself qualified the statement, which was located in a footnote, by rejecting the government’s argument in that case that the defendant’s possession of a key to the home, by itself, proved the defendant knowingly possessed cocaine found in the home. Here, the fact that Blue had a key to the apartment did not provide sufficient evidence to establish guilt beyond a reasonable doubt.

Insufficient Evidence for Conspiracy to Distribute

Blue’s second challenge was against the sufficiency of the evidence to support the charge for conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin. The Fourth Circuit again found that the evidence did not support a rational determination that Blue was guilty of conspiring to distribute. To have found Blue guilty for conspiracy for distribution specifically over 100 grams the government had to tie Blue and another person to an agreement to distribute the 108.6 grams of heroin. The government failed to present such evidence.

Fourth Circuit Reversed Both Convictions

As a result of the lack of sufficient evidence linking Blue to the 108.6 grams of heroin in the footstool and linking Blue to an agreement to distribute that amount of heroin, the Fourth Circuit reversed both convictions of conspiracy and possession with intent to distribute heroin.


By Daniel Stratton

On September 2, 2015, the Fourth Circuit reversed the conviction of an individual convicted on several charges related to his possession of marijuana with intent to distribute, and remanded for further proceedings in a published opinion in the criminal case United States v. Ductan. The appellant, Phillip Ductan, argued that the district court violated his Sixth Amendment right to counsel by finding that he forfeited his right to counsel and requiring him to proceed pro se, and by subsequently removing him from the courtroom during the jury selection process. The Fourth Circuit, after reviewing Ductan’s argument, reversed the lower court’s decision and remanded the case back to the district court, holding that the lower court erred in finding that Ductan forfeited his right to counsel.

Ductan’s Arrest and Trial

Following a tip from a confidential informant in April 2004, the Charlotte, N.C., Police Department set up a controlled purchase of marijuana from Ductan at a restaurant in Charlotte. After Ductan showed the informant the drugs, the Charlotte Police moved in to arrest Ductan and two men accompanying him. Ductan fled the scene of the crime and in September 2004 was indicted by a federal grand jury on charges of possession of marijuana with intent to distribute, conspiracy to possess marijuana with intent to distribute, and carrying a firearm during a drug trafficking crime. He was arrested in May 2012.

At his initial court appearance, Ductan indicated to the magistrate judge that he had retained Charles Brant, an attorney, to represent him. Brant soon thereafter made a motion to withdraw from the case, explaining that Ductan was uncooperative, would not communicate, and refused to sign a discovery waiver.

At the hearing on Brant’s motion, the magistrate asked Ductan whether he intended to hire an attorney or have the court appoint one. Ductan explained that he did not want to have an attorney appointed and that he did not intend to represent himself. He also complained to the magistrate judge that it was difficult to obtain counsel while incarcerated.

The magistrate explained to Ductan that he had three options: represent himself, hire a new attorney, or ask the court to appoint an attorney for him. At this point Ductan began to make nonsensical statements (telling the judge that he was a “secured party creditor,” for example). The magistrate asked the prosecutor to explain the charges and potential penalties to Ductan, but Ductan claimed he did not understand what was being told to him and that he was “only here for the settlement of the account.” The magistrate questioned whether Ductan was under the influence of drugs or alcohol, but only received nonsense responses in return.

At this point, the magistrate told Duncan that he would not appoint a new attorney because Ductan had waived his right to an appointed attorney through his nonsense answers. The magistrate judge directed a Federal Defender’s office to appoint standby counsel for Ductan. In his order granting Brant’s motion to withdraw, the magistrate noted that Ductan had not “knowingly and intentionally waived his right to counsel” but because of his evasive responses, Ductan had “forfeited his right to counsel.”

Ductan refused to cooperate with Randy Lee, the court appointed standby counsel. About one month later, Lee moved to withdraw as Ductan’s attorney. Ductan continued to state that he did not want an appointed attorney because he was seeking private counsel, however the judge denied the motion explaining that Lee would not have to try the case because Ductan had “waived his right to appointed counsel” through his conduct.

At a calendar call, Ductan again stated that he was seeking private counsel, and stressed that he could not properly represent himself. The court explained that although Ductan had waived his right to appointed counsel, he was still free to hire an attorney.

Jury selection began the next day. Ductan told the district court that he was not prepared to move forward with the proceedings. Ductan repeatedly made nonsense statements, interrupting as the judge attempted to call the venire. After refusing the court’s instruction to stop, Ductan was held in contempt and removed from the court.

Ductan was allowed to observe the jury selection from a holding cell. Lee had no participation in the jury selection process beyond a brief bench conference; he did not strike any jurors.

Following jury selection, Ductan was allowed back into the courtroom and the judge offered to purge the contempt citation if Ductan would behave. Ductan once again stated that he did not want to represent himself and intended to seek private counsel. When Ductan again refused Lee as his counsel, the judge concluded that Ductan had chosen self-representation because the trial was ready to begin. Ductan told Lee that the judges assessment was not a fair representation of his decision.

During the trial Ductan waived his opening, cross-examined several witnesses and gave a closing argument, occasionally consulting with Lee. Ductan was convicted on all three counts of his indictment. He was sentenced to 24 months in prison for the two drug counts, followed by a 60-month term for the gun conviction.

The Fourth Circuit’s Standard of Review for Waiving Right to Counsel

Typically, a defendant’s failure to object in district court to an alleged error would bar a review on appeal absent plain error. However, in certain circumstances the Circuit can review under a de novo standard. There is a circuit split regarding the proper standard of review when a defendant does not object to a right-to-counsel waiver. Previously, the Fourth Circuit has acknowledged there is uncertainty surrounding the question, but declined to determine a specific standard. At different times, the Fourth Circuit has applied both a de novo standard and a plain error standard.

In the lone published decision applying a plain error standard, U.S. v. Bernard, the defendant sought to remove his attorney and proceed pro se. Despite a history of mental illness, the court granted that defendant’s motion because at the time of the hearing to decide, he was still represented by counsel who advocated for the defendant’s ability to represent himself. Because the counsel bore “substantial responsibility for allowing the alleged error to pass without objection” the Fourth Circuit concluded that the defendant had failed to preserve his claim of invalid waiver under a plain error review. Conversely, in cases where a defendant waives counsel while being completely unrepresented, some circuits will review de novo because it is inappropriate to expect a defendant to know fully the perils of self-representation. Such reasoning also applies when an unrepresented defendant does not raise a proper objection to a court’s finding of forfeiture.

The Fourth Circuit Addresses Tension Between Sixth Amendment’s Right to Counsel and Right to Self-Representation

Under the Sixth Amendment of the U.S. Constitution, a criminal defendant has a right to counsel before he can be convicted and punished to imprisonment. At the same time, the Sixth Amendment also protects a defendant’s right to self-representation. Because access to counsel can often be essential in asserting other rights a defendant may have, the Fourth Circuit presumes that the right to counsel is the default position. To this end, the Fourth Circuit has never held that anything less than a waiver relinquishes one’s right to be appointed counsel. In order to assert a right to self-representation, a defendant must “knowingly and intelligently” forgo the benefits of representation after being made aware of the dangers and disadvantages of self-representation.

The U.S. Supreme Court has not “established precise guidelines for determining whether a waiver is knowing and intelligent.” In the Fourth Circuit, a court must find that (1) an individual’s background, (2) appreciation of the charges against him and their potential penalties, and (3) understanding of the pros and cons of self-representation support the conclusion that a waiver to counsel is knowing and intelligent. In order to prevent a defendant from manipulating the system, the waiver must also be “clear and unequivocal.”

Did Ductan Unequivocally Waive His Right To Counsel?

As a starting point, the Fourth Circuit applied a de novo standard of review to Ductan’s case. The court explained that Ductan’s case differed from Bernard because at the time that the magistrate judge determined Ductan had forfeited his right to counsel, Brant had already successfully withdrawn from the case. Thus, Ductan was left without representation and was in a position where he could not be fully expected to understand the necessity of raising a proper objection to the lower court’s decision.

Ductan argued to the Fourth Circuit that at no point did he ever “clearly and unequivocally” elect to proceed without counsel, as required by the court’s case law. He also argued that his waiver was not knowing and intelligent because the judge did not complete the required inquiry to ensure that Ductan was fully aware of his decision’s impact.

Throughout the trial, Ductan continued to reiterate his desire to retain counsel. The Fourth Circuit noted that the magistrate judge was correct in determining that Ductan had not knowingly and intentionally waived his right to counsel, but that the magistrate was wrong in concluding that he had forfeited that right through his “frivolous arguments and answers to questions.” While acknowledging that Ductan had been uncooperative in his interactions with the trial court, the Fourth Circuit explained that it had never previously held that a defendant could forfeit their rights to counsel. Thus, Ductan could not have forfeited his right to counsel through his actions.

The Fourth Circuit also found that Ductan had never waived his right to counsel either. Because Ductan never expressed any desire to proceed pro se, the lower court should have insisted on appointed counsel against Ductan’s wishes in the absence of an unequivocal request to proceed on his own.

Finally, the Fourth Circuit explained that even if Ductan had unequivocally requested to proceed pro se, he still would not have waived his right to counsel because the lower court never finished its inquiry to ensure his decision was knowing and intelligent. Although the judge attempted to start the inquiry, Ductan’s nonsense answers prevented the court from fully exploring his understanding of the proceedings. The Fourth Circuit found that in such a situation it was a requirement that Ductan be appointed counsel “until he either effected a proper waiver or retained a lawyer.”

Ductan’s Case is Reversed and Remanded on First Claim; Court Declines to Address Second Claim

Ultimately, the court held that the lower court erred in finding that Ductan forfeited his right to counsel or made a valid waiver of that right. The court vacated Ductan’s conviction and remanded for a new trial. Judge Diaz, writing a concurring opinion, explained that while the court was right to remand on the first claim, the second claim regarding what happened during jury selection also provided an independent grounds for relief as well.



By Whitney Pakalka

On October 22, 2015, the Fourth Circuit issued its published opinion in the criminal case of United States v. Slocumb. The Fourth Circuit reversed the District Court for the Western District of Virginia’s denial of a motion to suppress evidence. Because there was no particular and objective basis that created a reasonable suspicion for officers to detain Slocumb, the Fourth Circuit reversed the denial of Slocumb’s motion.

Slocumb’s Arrest and Conviction 

On March 18, 2013, Andre Slocumb, his girlfriend, Sierra Lewis, and an infant were in the parking lot of a salvage yard around midnight, transferring a child car seat from one vehicle to another. This same parking lot was chosen by the Culpeper, Virginia Police Department as a staging area prior to executing a search warrant on a nearby home. Approximately ten officers arrived at the parking lot, including Lieutenant Timothy Chilton. Chilton approached Slocumb and Lewis to inquire about their presence because the parking lot was known for criminal activity. Slocumb informed Chilton that he was there to pick up Lewis, whose car had broken down. Officer Chilton though Slocumb began hurrying Lewis, acted evasively, did not make eye contact, and gave mumbled responses to his questions.

When another officer asked Slocumb for identification, Slocumb provided a false name. The name given came back as valid for someone that matched Slocumb’s appearance. One of the officers then asked Lewis for Slocumb’s name, and she identified him as Hakeem Jones, a different name than Slocumb had given. Slocumb was placed under arrest for providing a false name, and officers discovered close to $6,000 on his person. Lewis gave consent for the officers to search the car that Slocumb had arrived in to pick her up. The officers found methamphetamine, cocaine powder, cocaine base, and a small amount of marijuana in the car.

Slocumb was indicted by a federal grand jury on three counts, and filed a motion to suppress the physical evidence seized by officers and incriminating statements he made after his arrest. The District Court denied Slocumb’s motion, finding that the officers had reasonable suspicion to justify Slocumb’s initial detention and had probable cause to arrest him. Slocumb pleaded guilty and was sentenced to ninety-four months on all three counts, to run concurrently. He appealed the denial of his motion to suppress, arguing that his Fourth Amendment right had been violated because he was detained by the police without a reasonable suspicion he had violated the law.

Fourth Amendment Right to be Free from Unreasonable Search and Seizure 

The Fourth Amendment provides the right to be free from unreasonable search and seizure. In considering when a police stop constitutes an unreasonable seizure, The Supreme Court has held that an officer may detain a person to conduct a brief investigation if he “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968). In order for the police to have a reasonable basis for stopping an individual, “the officer ‘must be able to point to specific and articulable facts which . . . reasonably warrant that intrusion.’” Id. at 21.

The Fourth Circuit applies a totality of the circumstances test in considering whether an officer had a reasonable suspicion of criminal activity justifying a stop. The Court cautioned that the government “must do more than simply label a behavior as ‘suspicious’ to make it so,” but must “articulate why a particular behavior is suspicious . . . given the surrounding circumstances.” United States v. Massenburg, 654 F.3d 480, 491 (4th Cir. 2011).

The Officers in this Case Did Not Have a Reasonable Basis for Detaining Slocumb

 The Fourth Circuit concluded that the factors considered by the District Court did not satisfy the totality of the circumstances test. The District Court considered, among other things, the lateness of the hour that Slocumb was in the parking lot, the fact that the parking lot belonged to a business that had been closed for several hours, and that it was a high crime area. The Fourth Circuit found that all of these considerations could contribute to a finding of a reasonable suspicion, however these “objective factors ‘do[] little to support the claimed particularized suspicion as to [Slocumb].’” Id. at 488.

The District Court had also considered Slocumb’s particular behavior in hurrying Lewis, avoiding eye contact, and giving mumbled answers. The Fourth Circuit found this behavior to be insufficient to support reasonable suspicion. The Court noted that behavior that has supported a reasonable suspicion included attempts to flee or “more ‘extreme’ or unusual nervousness or acts of evasion.” United States v. Foreman, 369 F.3d 776, 784 (4th Cir. 2004). Heavy breathing, sweating, and trembling hands were suggested by the Court as behaviors that may demonstrate an unusual nervousness, and thus support a reasonable suspicion. The Court found that Slocumb did not attempt to evade officers, but instead acknowledged them and answered their questions in a way that was consistent with his behavior. The Court found that the police had “no more reason to suspect that Slocumb was engaged in criminal activity than [they did] to believe his stated purpose and corresponding actions.”

The Fourth Circuit Reversed the District Court’s Denial of Slocumb’s Motion to Suppress

Because the police could not provide a sufficient objective and particular basis to create a reasonable doubt that would justify detaining Slocumb, the Fourth Circuit reversed the District Court’s ruling, vacated Slocumb’s conviction and sentence, and remanded for further proceedings.


By Daniel Stratton

Today, the Fourth Circuit affirmed the sentence of an individual convicted of conspiracy and possession with intent to distribute cocaine in a published opinion in the criminal case United States v. McCoy. The appellant, Dilade McCoy, challenged the district court’s decision to impose a 188-month sentence, on the grounds that the sentence was substantively unreasonable. McCoy argued that the district court abused its discretion by imposing a sentence that was above the initial sentencing guidelines range of 135 to 168 months’ imprisonment. The Fourth Circuit, after reviewing McCoy’s arguments, affirmed his sentence, explaining that the upward departure to 188 months was not unreasonable and that the district court had not abused its discretion by departing from the initial Sentencing Guidelines.

McCoy’s Conviction and Sentencing

In 2014, a federal grand jury in the Eastern District of Virginia indicted McCoy on several charges, including possession with intent to distribute and conspiracy to distribute and possess 500 grams or more of cocaine. During the trial, a co-defendant testified that he had purchased cocaine from McCoy in early summer 2013, late summer 2013, and again in November 2013, in amounts ranging from one to three kilograms. The late summer sale was returned to McCoy because of the drug’s poor quality. The jury returned a guilty verdict against McCoy on the drug charges for an amount between five hundred grams and five kilograms.

Following his conviction, the probation office prepared McCoy’s Presentence Investigation Report (“PSR”), which calculated a sentencing range of 135 to 168 months’ imprisonment, pursuant the U.S. Sentencing Commission’s Sentencing Guidelines. The PSR counted all three of the cocaine sales in its analysis and determined the amount of cocaine attributed to McCoy to be seven kilograms, which was above the range found by the jury. The PSR also included a previous 2005 conviction for criminal possession of cocaine with intent to distribute in its analysis.

McCoy argued that the amount of cocaine attributed to him in the report was inaccurate, and that he should be held accountable only for the amount the jury found. This, McCoy argued, would lower his sentencing range under the Sentencing Guidelines to 108 to 120 months.

The government, by contrast, moved for an upward departure of the guidelines, pointing to McCoy’s previous criminal past. McCoy, at the ages of 15 and 17, had committed three felonies, including two armed robberies and assault with intent to cause serious injury with a weapon, in addition to the 2005 criminal possession charge. The PSR did not use the three felonies McCoy committed as a minor, because they had occurred more than 15 years earlier. At sentencing, the government requested that McCoy’s criminal history, including his juvenile felonies, should elevate McCoy to a sentencing range between 168 and 210 months. McCoy objected.

The district court rejected McCoy’s objection to how much cocaine had been attributed to him, and found that McCoy’s criminal history supported an upward departure in his sentencing range. The district court ultimately determined McCoy’s range to be 188 to 235 months’ imprisonment, and sentenced McCoy to serve 188 months. McCoy appealed to the Fourth Circuit on the grounds that his sentence was substantively unreasonable.

How Does the Fourth Circuit Determine When a Sentence is Reasonable?

When reviewing a sentence for its reasonableness, the Fourth Circuit deferentially applies an abuse-of-discretion standard. This standard means that the Circuit will defer to the trial court’s judgment and affirm a reasonable sentence, “even if the sentence would not have been” that court’s choice. When determining if a sentence is reasonable, the Fourth Circuit looks for a “more significant justification than a minor one” where there is a major departure from the advisory guidelines.

The Sentencing Guidelines allow for an upward departure when there is reliable information that the defendant’s criminal history is substantially more serious than the Guideline’s categories may indicate. Prior convictions that are too old to be counted in the Sentencing Guidelines’ calculations may still be considered by a court when determining an appropriate sentence.

Additionally, while district courts are not bound to impose a sentence within a sentence recommended by the prosecution, the prosecution’s recommendation serves an important function in helping avoid unwarranted sentencing disparities.

In the event that there is of a retroactive amendment made to the Sentencing Guidelines, the new amendment does not make a prior sentence unreasonable. Rather, a defendant may make a motion under 18 U.S.C. § 3582(c)(2) to allow the district court to “assess whether and to what extent” the defendant’s sentence is impacted by the new change.

McCoy made four arguments to the Fourth Circuit as to why his sentence was substantively unreasonable, each of which the court determined failed.

McCoy’s Arguments Fail to Persuade Fourth Circuit

First, McCoy argued that the court improperly considered his juvenile felonies. The district court found that the criminal history calculation of McCoy’s PSR was not reflective of McCoy’s actual history and his likelihood for recidivism. While the district court acknowledged the remoteness of his juvenile felonies, it believed the fact that McCoy committed another felony within five years of his initial release justified the inclusion of the juvenile felonies.

McCoy, relying on a recent Fourth Circuit decision in United States v. Howard, argued that the upward departure was unreasonable. In Howard, the district court had imposed a life sentence instead of the suggested 121-month maximum suggested by the Sentencing Guidelines, and the Fourth Circuit held that to be unreasonable. Here, the court explained that Howard was distinguishable because the actual sentence was only twenty months more than the top of the initially suggested range. Because the departure “pale[d] in comparison to” the unreasonable departure in Howard, the Fourth Circuit held that the district court did not abuse its discretion by considering the juvenile felonies.

Second, McCoy argued that his sentence was unreasonable because the district court had put his criminal history in a higher category than the prosecution had recommended. The Court found this argument to be unpersuasive; while the district court had imposed a higher category for McCoy’s criminal history than suggested, the overall 188 month sentence it imposed was lower than the 192 month one sought by the prosecution.

Third, McCoy argued that his sentence overstated the seriousness of his crime. He argued that the November 2013 sell of three kilograms of cocaine merely replaced the bad order that had been purchased in the summer of 2013. Because of this, McCoy argued that his sentence should have been subject to a departure downward, to reflect a smaller amount of cocaine that was actually trafficked. The Fourth Circuit pointed to the fact that McCoy himself conceded that all seven grams of cocaine could be considered in the “technical determination” of how much he had trafficked. The court also noted that the trial record did not support McCoy’s argument.

Fourth, McCoy argued that because a new retroactive amendment to the Sentencing Guidelines, which lowered the base offense levels for drug-related crimes, went into effect soon after he was sentenced, his sentence was substantively unreasonable. The Fourth Circuit explained that the amendment did not change the fact that the district court had correctly applied the Sentencing Guidelines at the time of the sentencing. If McCoy wanted the new amendment applied to his sentence, the Fourth Circuit explained, he would have to submit a motion to the district court, which would assess whether the amendment affected McCoy’s sentence. In a footnote in its opinion, the Fourth Circuit explicitly made clear that its determination here was “rendered without prejudice to McCoy’s right to pursue” relief under the new amendment in the district court.

McCoy’s Sentence is Affirmed

Because the district court did not abuse its discretion in departing from the Sentencing Guidelines to impose a higher sentence on McCoy, the Fourth Circuit affirmed the 188-month sentence.


By Malorie Letcavage


On June 24, 2015 the Fourth Circuit issued its published opinion in the criminal case, U.S. v. Obey. This case was based on Gregory Obey’s claims that the government breached its plea agreement in making its sentencing recommendation and that the district court did not have the authority to order his sentence to run consecutively to any future sentence. The Court held that the prosecutor did not breach the plea agreement and that the district court did not commit plain error in ordering a consecutive sentence to any future state or federal sentence.

Conviction and Remand

Obey was convicted of several counts related to possession and distribution of cocaine and sentenced to 540 months imprisonment. But the government then filed a motion to remand for a new trial, which was granted. On remand, Obey entered a guilty plea to cocaine aiding and abetting. The written plea agreement stated that Obey would waive his right to appeal and the government would recommend an eighteen-year term of imprisonment. At the sentencing hearing, the government did recommend this term and explained that it was the result of negotiations. However, the district court decided that the recommendation lacked merit and instead imposed the maximum sentence of 240 months imprisonment. The district court also directed the sentence to “run consecutive to any other State or Federal sentence, including any unimposed sentence he might receive for the pending state murder charge.”

Obey contended that the government breached the plea agreement and the prosecutor undermined the plea agreement by implying personal reservations about the sentencing recommendation. He further contended that the district court erred in ordering that his sentence run consecutively to any future “State or Federal sentence.” The Court reviewed both contentions under a plain error standard.

Prosecutor Fulfilled the Plea Agreement 

The Court held that the prosecutor upheld the plea agreement because he repeatedly urged the district court to adopt the eighteen-year term of imprisonment. Even though the plea agreement did not require it, the prosecutor explained the term recommendation. Obey claimed that the prosecutor undermined the plea agreement by implying personal reservations about the sentencing recommendation and cited United States v. Brown and United States v. Grandinetti. However, the Court held that those cases did not apply because in Obey’s case the prosecutor did not criticize the terms of the agreement or express doubt about the propriety of the recommended sentence. He simply continued to recommend the eighteen-year term and explained that it was the result of plea negotiations.

No Plain Error In Ordering Consecutive Sentences

The Court then turned to the second argument. The district court relied on Setser v. United States, which held that a district court can impose a sentence consecutive to an anticipated state sentence. However, it did not address whether it could impose a sentence consecutive to an anticipated federal sentence. The Fourth Circuit had previously held in United States v. Smith that a district court lacked authority to order a sentence to run consecutive to any future sentence, but Setser abrogated that in reference to future State sentences. Therefore, the holding in Smith that a district court may not order a sentence consecutive to an anticipated federal sentence is still controlling precedent. The Court found that although the district court’s order was broader than authorized by Setser, it could not find that it was sufficient to meet the plain error standard. The Court had never previously addressed the issue and the holding in Smith was not so clear as to require reversal. Therefore, the district court did not plainly err.

Fourth Court Affirms the Lower Court

The Fourth Circuit affirmed the judgment of the district court. It held that the government did not breach its plea agreement and there was no plain error in recommending the sentence to run consecutive to any future State or Federal sentence.


By Sarah Saint

On May 20, 2015, the Fourth Circuit issued a published opinion in the criminal case U.S. v. Wynn, affirming the district court’s judgment. Anthony Wynn was convicted of drug offenses and sentenced to imprisonment followed by supervised release. Wynn violated the conditions of his release by possessing marijuana. The district court considered Wynn’s prior drug offenses when determining the grade of these possession violations, which Wynn argued was against the United States Sentencing Commission’s advisory policy statements for violations of probation and supervised release (the “policy statements”). The Fourth Circuit held that the district court did not err by using Wynn’s prior convictions to select the violation grade and accordingly affirmed the district court’s judgment.

The Marijuana Possessions and Revocation of Supervised Release

In 2003 Wynn was sentenced to a 150-month imprisonment, followed by a five-year supervised release, after being convicted of conspiracy to distribute and possession with intent to distribute under 21 U.S.C. §§ 846 and 841(a)(1). The conditions of the supervised release included refraining from unlawful use of controlled substances and submitting to drug testing.  After Wynn began his supervised release, his probation officer alleged Wynn had violated these conditions, including possession of marijuana on six occasions. Wynn admitted to these possessions and the district court found Wynn had violated the terms of his supervision, revoking his supervised release.

The probation officer used Wynn’s prior drug convictions to determine that his marijuana possessions were Grade B violations and punishable by between twenty-one and twenty-seven months imprisonment. Wynn argued that the marijuana possessions were Grade C violations and that the probation officer could not use his prior drug convictions in determining the violation grade under the policy statement. Because these are Grade C violations, Wynn argued for between eight and fourteen months’ imprisonment. The district court rejected Wynn’s argument and found the acts of possession constituted Grade B violations. The district court then sentenced Wynn to a term of twenty-four months imprisonment.

Standard of Review

Wynn only challenged the procedural calculation of the grade and thus the sentencing range. The Fourth Circuit reviewed the district court’s judgment de novo because properly applying policies is a question of law. The Court considered whether the district court correctly determined that the marijuana possessions were Grade B violations, or if they were actually Grade C violations as Wynn argued.

Grade B vs. Grade C Violations

Under U.S.S.G. § 7B1.1(a), Grade B violations are appropriate when the conduct constitutes an offense punishable by a term of imprisonment exceeding one year. Grade C violations are appropriate when the conduct constitutes an offense punishable by a term of imprisonment of one year or less. Under 21 U.S.C. § 844(a), drug possession offenses by a non-recidivist are punishable by a term of imprisonment of one year or less. However, drug possession offenses by a recidivist are punishable by a term of imprisonment greater than one year.

Wynn’s Arguments Against Using Prior Offenses Are Unpersuasive

Wynn argued that the Court should use 21 U.S.C. § 851(a)(1) to hold that when determining imprisonment for supervised release violations, a court cannot consider a defendant’s prior criminal history unless the government files notice. However, the Court did not find this persuasive and determined that this statute only applies to sentencing after a guilty plea in a trial and in immigration proceedings.  Further, the purpose of a supervised release revocation hearing is to determine the breach of trust committed by the defendant by considering the context. Accordingly, the Court determined the government could use Wynn’s prior convictions in selecting the violation grade.

Wynn also argued that, under U.S.S.G. § 7B1.1 application notes, the violation grade should be based only on conduct committed during supervised release. However, the application notes state that the court should consider all of the defendant’s conduct. The Court determined the application notes, then, suggest all conduct affects the violation grade.

The Fourth Circuit Affirmed the Decision of the District Court

Because the district court did not err in selecting Grade B for the supervised release violation based on Wynn’s prior convictions, the Fourth Circuit affirmed the district court’s judgment.


By Eric Jones

On April 28, 2015, the Fourth Circuit issued a published opinion in the criminal case United States v. Braxton.  The Circuit Court held that Fed. R. Crim. P. 11(c)(1) explicitly prohibits district courts from participating in discussions about plea agreements in any way.  Because the United States District Court for the District of Maryland impermissibly made repeated comments about the benefits of accepting a guilty plea to Braxton just before he elected to plead guilty, the Fourth Circuit vacated the proceedings and remanded for further proceedings.

Background and Proceedings Below

In 2012, Savino Braxton was charged with possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 841(a) (2012).  This charge carries a minimum ten-year sentence if convicted.  Braxton, however, has a prior felony drug conviction, which allows the government to file a prior felony information that would effectively double the mandatory minimum to twenty years’ imprisonment.  Braxton’s court-appointed counsel repeatedly expressed concern that if he did not plead guilty, the prosecutor would file a prior felony information.  Braxton nevertheless insisted that he desired to go to trial, where he planned to test the validity of the weight of the drugs.  On November 19, 2012, the government elected to file a prior felony information and establish a minimum twenty-year sentence if Braxton was found guilty at trial.  Prior to trial, the government formally offered Braxton a plea agreement wherein he would face a minimum of ten years and a maximum of fifteen.  The morning the trial began, the court dutifully memorialized for the record that Braxton had received and rejected the plea agreement, and wished to proceed to trial.  The district court went on to admonish Braxton repeatedly for electing to forgo the plea agreement, saying “I am not favorably inclined towards having you go to trial and trigger a mandatory minimum of 20 years, as opposed to a plea offer that’s down in the 10 to 15 year range in terms of years of your life” and compared going to trial to “put[ting] [your] head in a buzz saw that makes absolutely no sense.”  The district court then ordered a ten-minute recess, advising Braxton to “talk to your lawyer.”  After that recess, the district court again admonished Braxton that a “defendant shouldn’t put his head in a vice [sic] and face a catastrophic result just over a dispute over drug quantity. That’s the point.”  The court then dismissed for lunch.  During that lunch, Braxton changed his mind and elected to plead guilty.  Braxton later attempted to withdraw his guilty plea, arguing it had been involuntary.  Nevertheless, Braxton was sentenced to eleven and one-half years, and this appeal followed.

Federal Rule of Criminal Procedure 11(c)(1)

Under Fed. R. Crim. P. 11(c)(1), an “attorney for the government and the defendant’s attorney…may discuss and reach a plea agreement.  The court must not participate in these discussions.”  As the Fourth Circuit explained, this prohibition serves three primary goals.  First, it diminishes the possibility of judicial coercion of a guilty plea.  Second, it protects against unfairness and partiality in the judicial process.  Third, it eliminates the impression that the judge is an advocate for the agreement and not a neutral arbiter.  Although well-intentioned, the district court repeatedly suggested that the plea agreement was in Braxton’s best interests, which is in direct conflict with this rule.  Furthermore, the Fourth Circuit explained that the close proximity in time between when the comments were made and when the plea was accepted heightened the probability that Braxton was unduly influenced by the district court.

Braxton’s Statement That the Plea Was Given Voluntarily Was Insufficient

The Fourth Circuit was unconvinced by the government’s argument that Braxton’s guilty plea was voluntary.  Although the district court asked if Braxton felt “forced or threatened or pushed” to accept the plea agreement and Braxton replied “No, sir,” the Fourth Circuit held that his response was inconclusive.  The district court created “an unacceptable risk” that Braxton involuntarily entered his guilty plea in order to avoid offending the court, and thus his flat statement that he was not coerced was ineffective.

The District Court Cannot Remark Upon the Advantages of a Plea Agreement

The government also argued that, under Missouri v. Frye, the court must remark upon the advantages of the plea agreement and the disadvantages of trial in order to ascertain whether the defendant’s understanding of the decision is sufficient.  As the Fourth Circuit explained, however, the district court’s duties under Frye extend only to memorializing the terms of the plea agreement, and ensuring that the defendant understands them.  Thus, it was improper for the district court to advocate for the plea agreement at all, and the requirements of Frye do not make the comments of the district court in this case permissible.


The Fourth Circuit held that, although it did not appear that the district court intended to coerce Braxton, there was nevertheless a reasonable risk that Braxton had been influenced by the court.  Thus, because the district court’s plain error affected Braxton’s substantial rights, the Fourth Circuit vacated Braxton’s sentence and guilty plea, and remanded for further proceedings in front of a different judge.