Wake Forest Law Review
20Feb

Fourth Circuit Affirms Sentencing Enhancements for “Relevant Conduct”

Categories: 4th Cir. Blog Criminal Cases
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By John Van Swearingen

On January 24, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Agyekum. In the United States District Court for the Southern District of West Virginia, Kofi Agyekum (“Appellant”) plead guilty to two counts of structuring transactions, forfeiting over $2,300,000 in cash assets. Appellant challenged his sentence on two grounds: first, that sentencing enhancements based on involvement in a drug conspiracy were not “relevant conduct” with respect to his structuring convictions, and second, that sentencing enhancements based on his role as a pharmacist did not constitute “relevant conduct” with respect to the same convictions. Additionally, Appellant contended that the district court did not adequately ensure that he understood the procedural protections waived in his plea agreement. The Fourth Circuit affirmed Appellant’s sentence, holding that the Appellant’s involvement in a drug conspiracy and role as a pharmacist were within the scope of “relevant conduct.” Additionally, Appellant adequately understood the waivers of rights involved with his plea agreement.

Facts and Procedural History

In October, 2012, Appellant and his wife opened A+ Care Pharmacy in Barboursville, West Virginia. Appellant had total control over the operations of the business. Appellant’s wife was the licensed pharmacist, but she operated solely under Appellant’s control.

A confidential informant (“CI”) involved in a 2014 oxycodone trafficking ring investigation notified federal investigators that he had been filling prescriptions at A+ Care Pharmacy since November 2012. The CI made several controlled buys under supervision of the investigating agents in which the Appellant charged the CI an abnormally high price to fill out-of-state oxycodone prescriptions, doctored receipts to avoid leaving a paper trail, and discussed permitting the purchase of oxycodone without a prescription.

The investigation uncovered that Appellant was regularly filling ten to eighteen prescriptions a week for an organized drug ring headquartered in Kentucky with operations throughout the southeast United States. In spring of 2014, Appellant began selling oxycodone to the head of the organization without a prescription for around $15 per pill, and on one occasion, accepted a vehicle as payment. A+ Care Pharmacy was the third largest distributor of oxycodone in the state, and the drug comprised 70% of its business.

During this time, Appellant opened numerous bank accounts with several different financial institutions around town. Appellant used multiple accounts to avoid making cash deposits of $10,000 or more, which are subject to federal reporting. From March to August, 2014, Appellant deposited almost $470,000 in accounts at five banks, never depositing more than $10,000 into a single account on a single day.

In August, 2014, investigating agents executed a search warrant at A+ Care Pharmacy, seizing 51,000 pills of oxycodone, $68,000 in cash hidden in the pharmacy’s office, over $440,000 in cash stored in two safe deposit boxes, and 20 bank accounts owned by Appellant. Over $2,300,000 in assets were seized. Appellant was arrested.

Appellant was indicted with conspiracy to illegitimately distribute oxycodone, aiding and abetting the illegitimate distribution of oxycodone, forty counts of money laundering, and eleven counts of structuring cash transactions to avoid reporting.

After six months in jail, Appellant agreed to plead guilty to two counts of structuring transactions, forfeit over $2,300,000 in assets, and waive the procedural rights to any future challenges to the forfeiture. Appellant initially refused the plea agreement because of the forfeiture term, but eventually acknowledged to the district court that he understood the forfeiture term and accompanying waiver and accepted the plea deal.

Appellant’s sentencing report included multiple enhancements, including two to which Appellant objected: (1) enhancement based on Appellant’s role as a “leader” or “manager” within the criminal drug conspiracy pursuant to U.S.S.G. § 3B1.1(c), and (2) enhancement based on Appellant’s abuse of a position of trust pursuant to U.S.S.G. § 3B1.3. Appellant’s objections centered on the assertion that neither the Appellant’s participation in the drug conspiracy nor his role managing a pharmacy constituted “relevant conduct” with respect to his transaction structuring convictions as outlined in U.S.S.G. § 1B1.3. Additionally, Appellant claims that the district court did not properly ensure that he understood the waiver of procedural protections involved in his plea deal.

A Leadership Position In A Conspiracy Was “Relevant Conduct” With Respect To Structuring Cash Deposits Arising Out Of That Conspiracy

Appellant’s argument centers on the belief that enhancements for “relevant conduct” are limited strictly to the behaviors associated with the convictions. Here, those convictions were for structuring bank transactions. Therefore, Appellant argues, the only applicable enhancements must arise from his conduct as a bank customer.

U.S.S.G. § 1B1.3(a) defines “relevant conduct” in the scope of sentencing more broadly than the conduct considered for criminal liability. See United States v. McVey, 752 F.3d 606, 610 (4th Cir. 2014). “Relevant conduct,” therefore, can include preparatory conduct, conduct to avoid detection, and other conduct related to the commission of the charged offense.

But for the illicit nature of Appellant’s participation in a drug trafficking conspiracy, Appellant would not have been receiving large cash payments on a regular basis. Additionally, Appellant only structured the transactions to avoid the reporting requirements that would have alerted federal authorities to the cash-intensive nature of his dealings. Therefore, the court noted, Appellant’s participation in the drug conspiracy was “relevant conduct” for the purpose of sentence enhancement. Thus, if Appellant was in a leadership position in the conspiracy, the sentence enhancement was appropriate.

Appellant was in sole operational control of A+ Care Pharmacy, and directed the pharmacy’s operations regarding the filling of out-of-state prescriptions, mandated the acceptance of cash only for oxycodone, set the price for oxycodone transactions based on risk, and advised members of the conspiracy to also acquire prescriptions for non-narcotic drugs in order to reduce suspicion. The district court, therefore, was proper in determining Appellant had a leadership role in the drug conspiracy, and the sentence enhancement was therefore appropriate.

Abuse Of The Position Of Pharmacy Manager Was “Relevant Conduct” With Respect To Structuring Cash Deposits Arising Out Of That Position

Appellant also challenges the sentence enhancement based on the abuse of his position managing a pharmacy – a position of public trust – because his role was not “relevant conduct” with respect to the structured transactions.

Having determined that the pharmaceutical operations were within the scope of “relevant conduct,” the court then considered whether Appellant was abusing a position of public trust. The purpose of the enhancement is to punish those “who take advantage of a position that provides them with the freedom to commit a difficult-to-detect wrong.” United States v. Brack, 651 F.3d 388, 393 (4th Cir. 2011). Additionally, the defendant must have some sort of relationship to his victim that involves trust. United States v. Caplinger, 339 F.3d 226, 236 (4th Cir. 2003).

Appellant exploited his position by purchasing oxycodone from a legal distributor at a level that exceeded his actual lawful uses. Additionally, Appellant took advantage of his position as both a husband and a manager to force his wife to fill prescriptions for a drug trafficking ring. Appellant doctored records to conceal his activities from the West Virginia Board of Pharmacy. Thus, Appellant was using his unique position managing a pharmacy in order to facilitate the drug trafficking operations – “relevant conduct” underlying the structured transactions.

Appellant Fully Understood His Waiver Of Rights With Respect To Forfeiture

Appellant contended that the district court failed to ensure that he fully understood the rights he waived with respect to his asset forfeiture. However, the record on appeal included several exchanges in open court wherein Appellant (1) claimed multiple times to understand the terms of the plea agreement, (2) contested the plea agreement because he did not agree to the scope of the forfeiture term, and (3) subsequently agreed to the forfeiture term and plea agreement after discussing his situation with his lawyer. Therefore, Appellant’s assertion was wholly unsupported by the record.

Disposition

The Fourth Circuit affirmed both challenged sentencing enhancements and denied Appellant’s challenge to his waiver of rights regarding the forfeiture term of the plea agreement.

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16Feb

Fourth Circuit: Government Did Not Breach Plea Agreement

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By Mickey Herman

On Thursday, January 11, 2017, the Fourth Circuit issued a published opinion in United States v. Tate, a criminal case. Defendant-appellant, Brandon Tate, appealed his sentence, arguing that the government failed to comply with the plea agreement. After reviewing Tate’s claim for plain error, the Fourth Circuit affirmed the district court’s sentencing decision.

Facts & Procedural History

In a written plea agreement, Tate agreed to plead guilty to several drug-related offenses in exchange for the government “seek[ing] a sentence at the lowest end of the . . . ‘applicable guideline range.’” Tate also waived his right to appeal his conviction and sentence with two exceptions, neither of which are relevant on appeal. After establishing that Tate was competent to plead guilty and understood the term of his plea agreement, a magistrate judge prepared a presentence report (“PSR”) that established a guideline range of 57 to 71 months’ imprisonment. Objecting to the assignment of three criminal history points for his prior convictions, Tate argued that the range actually should have been 46 to 57 months’ imprisonment. At sentencing, the district court overruled Tate’s objection and adopted the PSR’s guideline range of 57 to 71 months. Upon the government’s recommendation, the district court sentenced Tate to 57 months’ imprisonment. Tate appealed, arguing that the government breached the plea agreement by not recommending a sentence of 46 months, the lowest end of his proposed range.

Waiver 

The Court first considered whether Tate’s appeal waiver barred this claim. Noting that appeal waivers are generally valid, the Court nonetheless emphasized that “[a] defendant’s waiver of appellate rights cannot foreclose an argument that the government breached its obligations under the plea agreement.” United States v. Dawson, 587 F.3d 640, 644 n.4 (4th Cir. 2006). Thus, the Court determined, Tate’s claim that the government breached the plea agreement is not barred by the waiver and must be considered.

Breach of Plea Agreement

The Fourth Circuit next turned to the issue presented: whether the government breached the plea agreement by recommending a sentence at the lowest end of the guideline range adopted by the district court. Noting that Tate did not raise the issue below, the Court reviewed his claim for plain error. Fed. R. Crim. P. 52(b). In framing its analysis, the Fourth Circuit asserted that plea agreements are contracts and must be analyzed as such. Thus, obligations created by a plea agreement must be determined in light of the document’s plain language, United States v. Jordan, 509 F.3d 191, 195 (4th Circ. 2007), and any ambiguities must be construed against the government.

The Court began its analysis by “assum[ing] arguendo that the lower guideline range proposed by Tate of 46 to 57 months was the correct guideline range.” Even in light of that assumption, the Fourth Circuit concluded that “‘applicable guideline range’ means the guideline range found by the district court, and that, therefore, the government’s sentencing recommendation complied with the plea agreement.”

The Court offered three justifications for so holding. First, because only the district court is tasked with determining the “applicable guideline range,” the “applicable guideline range” must be that which is adopted by the district court. Second, where a plea agreement merely references the sentencing guidelines but does not expressly condition the plea agreement on a correct sentence under the guidelines, no such condition exists. Third, Tate’s failure to demand that his proposed range be included in the plea agreement suggests that both parties anticipated the district court to determine the range.

Conclusion

Suggesting that Tate’s theory on appeal was nothing more than an attempt to circumvent his waiver of appeal by “covert[ing] [the] claim of sentencing error into a claim of breach by the government,” the Fourth Circuit affirmed, holding that the district court complied with the plea agreement by recommending a sentence on the lowest end of the guideline range adopted by the district court.

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16Feb

The Fourth Circuit Cites Contract Law to Dismiss Waived Sentencing Appeal

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By Eric Benedict

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

McLaughlin Accepts Plea Agreement for ATM Fraud

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

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

[emphasis added]

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

McLaughlin Appeals “Role-In-Offense” Sentence Increase

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

The Fourth Circuit Concludes that McLaughlin Waived Appeals Grounds

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

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

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

The Fourth Circuit Determines that the Appeal as Waived and Dismisses

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

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16Sep

Fourth Circuit Vacates Guilty Plea Due to District Court Coercion

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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.

Conclusion

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.

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6Apr

Defendant Stuck With Guilty Plea After Ineffective Assistance of Counsel Claim Fails on Appeal

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By Marcus Fields

Today, in U.S. v. Solares, an unpublished opinion, the Fourth Circuit affirmed the District Court for the Western District of North Carolina’s judgment against Adrian Solares imposing a 93-month sentence after Solares pled guilty to multiple firearm offenses. In doing so, the Fourth Circuit denied Solares’s ineffective assistance of counsel claim and found that the district court did not abuse its discretion when it denied Solares’s petition to withdraw his guilty plea.

 Ineffective Assistance of Counsel Claim Not Supported by the Record

Solares claims that his attorney failed to provide effective assistance when “counsel allegedly advised Solares that he could not plead guilty to some of the counts against him and proceed to trial on the remaining counts.” The Fourth Circuit rejected this claim. It began by stating that a defendant may only raise a claim of ineffective assistance of counsel for the first time on appeal if “it conclusively appears from the record that counsel did not provide effective assistance.” The defendant must show that: “(1) counsel’s performance was objectively unreasonable; and (2) defendant was prejudiced by counsel’s performance.

To satisfy the prejudice prong in the context of a guilty plea, a defendant must demonstrate “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” A defendant must make such a demonstration by convincing “the court that such a decision would have been rational under the circumstances.” The Fourth Circuit determined that the record below did not support such an assertion and thus rejected Solares’s ineffective assistance of counsel claim.

The Magistrate Judge did not Abuse Discretion By Refusing to Allow Solares to Withdraw Plea

The Fourth Circuit held that Solares had waived his right of appellate review because he failed to appeal the magistrate judge’s ruling to the district court. The Fourth Circuit cited language in another case stating that a defendant could not “ignore his right to file objections with the district court without imperiling his right to raise the objections in the circuit court of appeals.” Furthermore, the Fourth Circuit found that the magistrate judge did not err in deciding to deny Solares’s motion to withdraw.

Because the Fourth Circuit rejected both of the claims raised by Solares on appeal, it affirmed the district court’s judgment.

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26Mar

Fourth Circuit Affirms Sentencing Enhancement for Drugs & Firearms

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By Michael Mitchell

Today, in the criminal case of United States v. Pina, an unpublished per curiam opinion, the Fourth Circuit affirmed the decision of the District Court for the Western District of North Carolina, upholding the defendant’s conviction and enhanced sentence for drug charges and firearm possession.

Defendant Challenges Two-Level Sentencing Enhancement

The Fourth Circuit considered whether the district court properly applied a two-level enhancement to the defendant’s sentence for drug-related conspiracy and possession of a firearm.  The defendant also alleged that his guilty plea was coerced and his sentence was “substantively unreasonable.”

Defendant Convicted for Drug & Firearm Charges

The district court sentenced the defendant Jose Francisco Jiminez Pina to 180 months in prison after he pled guilty to conspiracy to distribute and possess with intent to distribute at least 500 grams of a mixture and substance containing a detectable amount of methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime.  The district court sentenced the defendant to the mandatory-minimum 120 months for the drug conspiracy and 60 consecutive months for the firearm conviction.  Acknowledging that there were no meritorious issues on appeal under the framework of Anders v. California, the defendant challenged whether the two-level enhancement was properly applied and whether his case should be remanded to the district court for application of the Sentencing Guidelines.

Fourth Circuit Applies “Plain Error” Standard of Review

To evaluate whether the two-level enhancement was appropriate, the Fourth Circuit considered reasonableness “under a deferential abuse-of-discretion standard,” according to Gall v. United States.  The court found no “‘significant procedural error,” such as improper calculation of the sentencing range under the Guidelines or inadequate explanation of the sentence to the defendant.  Therefore, the Fourth Circuit instead reviewed the case for “plain error only.”

Mandatory Minimum Sentence Satisfies Sentencing Guidelines

The Fourth Circuit considered the defendant’s claim by evaluating the Sentencing Guidelines, finding that the defendant had been convicted of a crime wherein methamphetamine production or distribute was a principal purpose of the premises.  The district court applied the mandatory minimum sentence of 120 months for the defendant’s drug conviction, “the lowest sentence it could impose.”  Thus, the Fourth Circuit determined that there was “no plain error” in the calculation of the defendant’s sentence according to the Sentencing Guidelines.  The Fourth Circuit also found the sentence “substantively reasonable” based on a “totality of the circumstances.”  The defendant was also unable to overcome the rebuttable presumption in favor of the district court’s judgment with regard to his plea agreement allegations.

Fourth Circuit Affirms District Court’s Enhanced Sentence

The Fourth Circuit affirmed the district court’s judgment upholding the defendant’s conviction for conspiracy to distribute methamphetamine and firearm possession as well as the two-level sentencing enhancement for a total of 180 months in prison.

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24Feb

120 Months not Unreasonable for Heroin Distribution

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By Caroline E. Daniel

Today, in United States v. Thomas, an unpublished criminal opinion, the Fourth Circuit affirmed Defendant Demetrius Thomas’ (“Thomas”) conviction and sentence.

Thomas Questions Validity of plea and Length of Sentence

Thomas pled guilty to a violation of 21 U.S.C. § 841(a)(1) for distributing heroin, for which he was sentenced to 120 months.  He appealed, arguing that he did not enter into his guilty plea knowingly, that the sentence was unreasonable, and that his counsel had been ineffective.

Fourth Circuit Finds that Thomas Knowingly pled Guilty

Because he did not move to remove his guilty plea in district court, the Fourth Circuit reviewed Thomas’ guilty plea for plain error.  In reviewing the record, the Court determined that the district court had performed a proper plea colloquy, satisfying Rule 11.  The Court found that Thomas had been given the opportunity to give sworn statements, which reflected that his plea was “knowing, voluntary, and supported by a sufficient factual basis.”

Thomas’ Sentence was not Unreasonable

The Court reviewed both the procedural and substantive reasonableness of Thomas’ sentence under a “deferential abuse of discretion” standard.  The Fourth Circuit found that the lower court had satisfied both procedural and substantive requirements.

First, in terms of procedure, the Fourth Circuit held that the lower court had: (1) properly calculated Thomas’ sentencing range; (2) considered Thomas’ arguments for a lesser sentence; (3) considered the factors required by 18 U.S.C. § 3553(a); and (4) properly explained its analysis of those factors.  Next, the Fourth Circuit considered whether the sentence was substantively reasonable.  The Court explained that there is a presumption that a sentence within the Sentencing Guidelines range is reasonable, and that here, Thomas had not overcome that presumption.

Fourth Circuit Finds no Evidence of Ineffective Counsel

Finally, the Fourth Circuit found no evidence of ineffective counsel in the record.  The Court held that, even if counsel had been ineffective in some capacity, it would have been proper to raise this issue in a motion pursuant to 28 U.S.C. § 2255.  Thus, the Court dismissed this claim without merit.

Fourth Circuit Affirms both Verdict and Sentence

After analyzing each of Thomas’ concerns, the Fourth Circuit affirmed the district court’s decision.  Accordingly, Thomas was guilty of distributing heroin, and his sentence of 120 months stands.

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23Feb

Court Rules Defendant Cannot Appeal Plea Agreement

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By Dan Menken

Today, in United States v. Loftis, an unpublished opinion, the Fourth Circuit upheld Scottie Allen Loftis’ sentence of 120 months’ imprisonment for possession of stolen firearms.

Loftis Pled Guilty to Possession of Stolen Firearms

Loftis pled guilty to possession of stolen firearms, in violation of 18 U.S.C. § 922(j), and was sentenced to the agreed upon 120 months’ imprisonment.  Loftis filed a pro se supplemental brief, challenging his conviction and sentence and raising claims of ineffective assistance of counsel and prosecutorial misconduct.

Absent Failure to Comply with Federal Rule of Criminal Procedure 11, Loftis’ Sentence Not Appealable

Under plain error review, the Fourth Circuit found that the district court substantially complied with Federal Rule of Criminal Procedure 11 by ensuring that Loftis understood the import of his binding plea agreement.

The Court next turned to Rule 11(c)(1)(C), which states that subject to narrow exceptions, a defendant may not appeal an agreed upon sentence.  Because none of the exceptions were applicable and the sentence was not based on an incorrect application of the Sentencing Guidelines, the agreement between Loftis and the Government was appropriate.  Thus, the Fourth Circuit held that it did not have jurisdiction to review Loftis’ sentence.

Ineffective Assistance Claims Not Generally Addressed on Direct Appeal

Loftis further argued that his counsel rendered ineffective assistance by forcing him to plead guilty and by advising him to enter into the binding plea agreement.  The Fourth Circuit noted that unless an attorney’s ineffectiveness conclusively appears on the face of the record, a defendant would need to raise such a claim in a motion brought pursuant to 28 U.S.C. § 2255.  In Loftis’ case, the record did not conclusively establish ineffective assistance, and, therefore, the Fourth Circuit concluded that Loftis must address his claims in a § 2255 motion.

No Evidence of Prosecutorial Misconduct

The Fourth Circuit further held that the record did not support Loftis’ claim that the prosecutor conspired with counsel to force Loftis’ guilty plea.

Loftis’ Conviction Affirmed

Thus, after reviewing the entire record, the Fourth Circuit concluded that there was no meritorious grounds for appeal and affirmed Loftis’ conviction.

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10Feb

District Court Reasonable in Sentencing Defendant to Over Thirty-Seven Years

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By Chad M. Zimlich

Today, in the criminal case United States v. Lynch, an unpublished opinion, the Fourth Circuit dispensed with oral arguments, finding that a sentence departure and a reliance on an informant were not substantial errors by the district court.

Upward Variances and Confidential Informants

The issues presented to the Fourth Circuit by defendant Tremayne A. Lynch (a.k.a. “Paco”) were whether the District Court of the Eastern District of North Carolina was wrong in relying on the information of a confidential informant to prove Count One, conspiracy to possess cocaine base with intent to distribute, as well as wrong in using an upward variance in Count Two, discharging a firearm during and in relation to a drug trafficking crime.

Additionally, an issue arose as to whether Lynch’s challenge to the sentencing calculation in Count One was barred by his plea agreement.

Drug Dealing, Gunfire, and a Plea Deal

The facts of the case were fairly simple, as the defendant has entered into a plea agreement, with little left in dispute afterwards. Defendant Lynch pleaded guilty to conspiracy to possess and distribute cocaine base, as well as discharging a firearm during and in relation to a drug trafficking crime. In sentencing Lynch, the district court relied on information given by a confidential informant about the weight of the cocaine base that was possessed by Lynch. The district court applied an eight-level upward departure; a variance used when, due to the seriousness or cruelty of the crime, the court feels a longer sentence is justified. This resulted in a total sentence of 450 months; 240 months for Count One and 210 months for Count Two. Lynch then appealed.

Deference to the District Court’s Reasonable Findings

The standard of review in cases like these for sentencing is de novo, however the court’s fact-finding will be given great deference and will only be overturned if the Fourth Circuit finds there to be a clear error or abuse of discretion. The Fourth Circuit also reiterated that the district court is free to use any relevant information before it, including uncorroborated hearsay, when weighing determinations on fact-finding decisions.

Lynch Gets His Challenge, But Ultimately Fails On the Merits

The Government first contended that Lynch was unable to challenge the use of the information delivered by the confidential informant as Lynch’s plea agreement waived his right to appeal a within-Guidelines sentence. However, Lynch’s argument was that his overall sentence was in excess of the Guideline’s range, thus negating the waiver and allowing him to appeal. The Fourth Circuit agreed.

However, this did little to help Lynch, as the Fourth Circuit disagreed that the district court’s use of the informant was outside of the court’s discretion. As a district court is able to determine the reliability of information presented to it, the Fourth Circuit refused to disturb the determination as the Fourth Circuit was not convinced by the record that it was definite a mistake had been committed.

Furthermore, the Court denied that there was an error in applying an upward variance on Lynch’s sentence under Count Two. Because the variance would have been substantively reasonable in any case due to the “wanton cruelty of Lynch’s conduct,” any error that would have been committed was harmless.

Sentences Need Only Be Reasonable, District Court Has Discretion

The Fourth Circuit once again affirmed that a district court need only provide a reasoned basis for sentence variances, and deference will always be afforded for the fact-finding work of the district court.

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6Feb

Waiver of Right to Appeal Bars Fourth Circuit Review

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By Kaitlin Price

Today, in United States v. Watson, an unpublished opinion, the Fourth Circuit dismissed Watson’s appeal after holding that Watson effectively waived his right to appeal.

Underlying Facts

Watson plead guilty to four counts of bank robbery in violation of 18 U.S.C. § 2113(a) (2012), and possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g), 924(e) (2012). In exchange, Watson received five concurrent 235 month sentences.  On appeal, Watson contended that the district court erred in applying a threat of death enhancement in calculating the offense level applicable to one of his robbery counts and effectively rendering his sentence unreasonable. The Government responded to Watson’s appellate arguments by seeking to enforce the appellate waiver provision in his plea agreement. After some consideration, the Court sided with the Government and dismissed.   

Standard for Legal Waiver of Appellate Rights

In United States v. Amaya-Portillo the Fourth Circuit explained that a defendant can waive his right to appeal so long as “waiver is a result of a knowing and intelligent decision.” A judge is not required for the district court judge to ask the defendant about his understanding of the effects of his waiver of a right to appeal, but instead the court must assess the totality of the circumstances to determine if the defendant had the knowledge to make an intelligent decision. The Fourth Circuit in Unite States v. General explained that the defendant’s experiences, conduct, educational background and familiarity with plea agreements are all factors that can be used to determine if the waiver is valid. The Court was clear that as long as the issue appealed is within the scope of the waiver, it will be enforced.

Here, the Fourth Circuit held that Watson’s waiver was valid because his waiver was knowing and intelligent. Further, the sentencing issue Watson attempts to raise was within the scope of the waiver, therefore the Fourth Circuit dismissed Watson’s appeal.

 

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5Feb

Fourth Circuit Upholds Appellate Waiver in Plea Agreement

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By Michael Mitchell

Today, in the criminal case of United States v. Tagle, an unpublished per curiam opinion, the Fourth Circuit affirmed the decision of the District Court for the Western District of North Carolina upholding the defendant’s drug conviction and sentence.

Defendant Alleges Ineffective Assistance of Counsel

The Fourth Circuit considered the defendant’s challenge to his 138-month sentence for a drug conviction resulting from a plea agreement. The defendant alleged ineffective assistance of counsel because his attorney did not object to his waiver of appeal to his sentencing length in the plea agreement.

Guilty Plea Waives Right to Appeal

Armando Jiminez Tagle pleaded guilty to conspiracy to possess fifty or more grams of methamphetamine with the intent to distribute. The defendant believed that his 138-month sentence should be shortened based on the time that he spent in state custody before being transferred to federal court. As a result, he alleged ineffective assistance of counsel and challenged his sentence.

“Knowing and Intelligent” Waiver of Right to Appeal

In a de novo appellate review, the Fourth Circuit considered whether the defendant’s waiver of his right to appeal his conviction and sentence was “knowing and intelligent.” Under United States v. Thornsbury, the court must evaluate the totality of the circumstances, “including the experience and the conduct of the accused, as well as the accused’s educational background and familiarity with the terms of the plea agreement.” The waiver is generally enforced as long as it is valid.

Standard of Review: Totality of the Circumstances

The Fourth Circuit found that the defendant “knowingly and intelligently waived his right to appeal his sentence in his plea agreement” based on a totality of the circumstances. The defendant’s challenge was within the scope of the valid and enforceable waiver.

Fourth Circuit Affirms Conviction & Sentence

The Fourth Circuit affirmed the district court’s judgment upholding the defendant’s conviction and 138-month sentence, dismissing the defendant’s challenge.

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29Jan

Fourth Circuit Holds Guilty Plea Was Supported by an Adequate Factual Basis

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By Diana C. Castro

Today, in the criminal case United States v. Adonte Young, the Fourth Circuit affirmed in an unpublished opinion the decision of the District Court for the Western District of North Carolina, holding Young’s guilty plea was supported by an adequate factual basis.

 Defendant Questions Whether His Guilty Plea Was Adequately Supported

Under Anders v. California, the defendant does not argue that there are meritorious issues for appeal; however, he questions whether his guilty plea was supported by an adequate factual basis.  386 U.S. 738 (1967).

Defendant Pled Guilty to Aiding and Abetting of a § 924(c) Violation

To establish the aiding and abetting of a § 924(c) violation, the Government must prove “that the defendant actively participated in the underlying… violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.”  Rosemund v. United States, 134 S. Ct. 1240, 1243 (2014).

Here, Young and a codefendant robbed a bank teller at gunpoint and fired two rounds as they left the bank. Even though Young denied firing the shots, he admitted he gave the codefendant the gun.  Moreover, the police found Young’s DNA on the firearm when the gun was recovered after the robbery.

A Plea Court Must Conduct a Colloquy Prior to Accepting a Guilty Plea

Under Federal Rule of Criminal Procedure 11(b)(1), before accepting a guilty plea, the plea court must inform the defendant of, and determine he understands, the nature of the charge to which he is pleading guilty, any mandatory minimum sentence, the maximum possible penalty applicable, and the various rights the defendant surrenders by pleading guilty.  United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).

Additionally, the district court must also confirm that the defendant’s plea is voluntary, supported by an independent factual basis, and not a result of coercion in the plea agreements.

The Magistrate Judge Conducted a Thorough Plea Colloquy

Because Young did not move to withdraw his guilty plea or otherwise preserve any allegation of Rule 11 error, the Fourth Circuit determined it would review for plain error.  Accordingly, the Fourth Circuit held the magistrate satisfied the requirements of Rule 11 and ensured that Young’s plea was knowingly and voluntary.

A Court Has Wide Discretion in Determining Factual Basis of a Guilty Plea and May Rely on Anything in the Record

Under United States v. Ketchum, a court need only be “subjectively satisfied” that the factual basis is sufficient to establish each element of the offense.  550 F.3d 363, 366-67 (4th Cir. 2008).  “The district court must assure itself simply that the conduct to which the defendant admits is in fact an offense under the statutory provision under which he is pleading guilty.”  United States v. Carr, 271 F.3d 172, 178-79 n.6 (4th Cir. 2001).

Court of Appeals for the Fourth Circuit Court Affirmed

Reviewing the facts of the case, the Fourth Circuit held the District Court did not err in finding a factual basis for the offense.

Applying Anders, the Court found no potentially meritorious issues and affirmed the District Court’s judgment.  Furthermore, the Court required that counsel inform Young, in writing, of his right to petition the Supreme Court of the United States for further review.

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