Post-Conviction
United States v. Hairston 2014 WL 2600057 (4th Cir. 2014)
Numerically second §2255 was not “second or successive” motion
The defendant pled guilty to conspiracy to possess with intent to distribute narcotics in 2003, and was sentenced to 324 months, taking into account his category IV criminal history, which included a conviction for “No Operator’s License” in North Carolina. Within a year of sentencing, he filed a 2255 petition that was denied. Also that year, he filed a motion in state court, seeking to vacate the No Operator’s License conviction. Eight years later, he finally succeeded in getting the state conviction vacated on a finding that he was denied assistance of counsel. The defendant then filed a 2255 motion, arguing that the vacatur lowered his criminal history to category III, resulting in a lower guidelines range. The district court dismissed the claim holding that the defendant did not meet the requirements of a second or successive motion to vacate. The Fourth Circuit joined the Tenth and Eleventh Circuits in holding that when the grounds for challenging a sentence did not exist at the time the initial 2255 was filed, specifically in the context of reopening a federal sentence after an underlying state conviction is vacated, then such 2255 motion is not second or successive. See In re Weathersby, 717 F.3d 1108 (10th Cir. 2013); Stewart v. United States, 646 F.3d 856 (11th Cir. 2011). Finding reasoning of Stewart and Weathersby compelling, the court held that “a numerically second §2255 motion should not be considered second or successive pursuant to §2255(h) where, as here, the facts relied on by the movant seeking resentencing did not exist when the numerically first motion was filed and adjudicated. Here, [the defendant’s] claim was unripe at the time his numerically first motion was adjudicated. Accordingly, in light of the subsequent vacatur of his state No Operator’s License conviction, which contributed to the original guidelines calculation of his federal sentence, his motion was not successive.”
Crime of Violence
United States v. Herrera-Alvarez
2014 WL 2131549 (5th Cir. 2014)
Louisiana aggravated battery was crime of violence under §2L1.2
The defendant pled guilty to illegal reentry and received a sixteen-level enhancement under §2L1.2, based on a 2010 Louisiana conviction for felony aggravated battery under Louisiana Revised Statutes section 14:34. The criminal information for that offense alleged in pertinent part that the defendant did, “willfully and unlawfully commit an aggravated battery with a dangerous weapon, to-wit: a knife, . . . in violation of the provisions of R.S. 14:34.” On appeal, the defendant claimed that the Louisiana statute, under the modified categorical approach, was not a crime of violence.The Fifth Circuit disagreed, holding that the Louisiana offense, “as narrowed pursuant to the modified categorical approach,qualifies as a crime of violence under §2L1.2 because it has as an element the use, attempted use, or threatened use of force against the person of another.” “We conclude that, thus narrowed, the offense for which [the defendant] was convicted under Louisiana Revised Statutes section 14:34 necessarily had as an element the use, attempted use, or threatened use of force against the person of another and therefore qualifies as a crime of violence under §2L1.2.”
United States v. Brooks 751 F.3d 1204 (10th Cir. 2014)
Kansas conviction for eluding police not a felony for purposes of career offender
In 2009, the defendant was convicted by a Kansas court of possessing cocaine with intent to sell and was sentenced to 40 months in jail. Around the same time, he was also convicted in a Kansas court of eluding a police officer. This offense, under the Kansas guideline, carried a maximum sentence of seven months, and the Kansas court imposed a sentence of six months. On May 8, 2012, the defendant pled guilty in federal court to possessing with intent to distribute crack cocaine, and to using and carrying a firearm in furtherance of a drug trafficking offense. The PSR concluded that the defendant was a “career offender” under §4B1.1(a) because he had at least two prior felony convictions of either a crime of violence or a controlled substance offense; namely, the prior cocaine distribution conviction and the prior eluding conviction. This resulted in a sentencing range of 262 to 327 months. At sentencing, and on appeal, the defendant argued that eluding a police officer, while indeed a crime of violence, was not a federal felony in this instance because it was not “punishable by . . . imprisonment for a term exceeding one year.” The district court, relying on United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), classified the Kansas conviction as a felony because it was punishable by more than one year in prison. On appeal, the defendant argued that Hill was abrogated by the Supreme Court in Carachuri- Rosendo v. Holder, 560 U.S. 563 (2010). The Tenth Circuit agreed, holding: “Hill which looked to the hypothetical worst possible offender to determine whether a state offense was punishable by more than a year in prison cannot stand in light of Carachuri- Rosendo. We now hold, in line with our pre-Hill precedent, that in determining whether a state offense was punishable by a certain amount of imprisonment, the maximum amount of prison time a particular defendant could have received controls, rather than the amount of time the worst imaginable recidivist could have received. As such, [the defendant’s] prior Kansas conviction for eluding police is not a felony for purposes of §4B1.1(a). The district court’s imposition of a career offender enhancement was therefore in error and is REVERSED. This case is REMANDED for resentencing.”
United States v. Jones
2014 WL 2616892 (5th Cir. 2014)
Prior conviction for escaping from BOP halfway house not crime of violence
The defendant was convicted of possession of a firearm by a felon. The PSR recommended a base offense level of 20, under §2K2.1(a)(4)(A), based on the conclusion that the defendant had a prior felony conviction for a “crime of violence,” as defined in §4B1.2(a). The prior felony conviction was under 18 U.S.C. §751(a) for leaving a halfway house. The defendant objected to the PSR, arguing that this prior conviction did not constitute a crime of violence, that the base offense level should be 14, and the sentencing range should be 37 to 46 months, as opposed to 70 to 87 months. The district court adopted the PSR and sentenced the defendant to 70 months. On appeal, he contended that the Supreme Court, in Chambers v. United States, 555 U.S. 122 (2009), indicated that absconding from a halfway house did not present a serious potential risk of injury to another. The Fifth Circuit noted that “the residual clause in §4B1.2 differs materially from the ACCA’s residual clause [and that] the commentary regarding the residual clause in §4B1.2 directs a court to look at conduct expressly charged in the count of conviction to determine if that conduct by its nature presented a serious potential risk of physical injury to another.” Here, the indictment underlying the conviction alleged that he “knowingly escape[d] from the custody of the Bureau of Prisons, by absconding from Dismas Halfway House in Corpus Christi, Texas, an institutional facility in which he was lawfully confined, at the direction of the United States Attorney General by virtue of a judgment and commitment of the United States District Court . . . .” Because the face of the indictment alleged that the defendant absconded from a halfway house, and absconding from a halfway house did not categorically present a serious potential risk of physical injury to another, the district court erred by classifying the prior offense as a crime of violence.
United States v. Martinez
2014 WL 2922312 (8th Cir. 2014)
Prior state conviction was not felony firearms conviction under §2L1.2(b)(1)(A)(iii)
The defendant pled guilty to being found in the United States after committing a felony and being deported. The government sought an enhancement under §2L1.2(b)(1)(A)(iii), which adds 16 levels for a prior felony conviction “that is . . . a firearms offense” and “receives criminal history points under [Guidelines] Chapter Four.” The relevant statute at the time of the prior offense was Ariz. Rev. Stat. §13-3102(A) (2001), which contained fourteen subsections listing many ways a person could “commit[ ] misconduct involving weapons.” The district court believed that the conviction qualified under the “modified categorical approach,” as set out in Descamps v. United States, 570 U.S. —-, —-, 133 S. Ct. 2276 (2013).Under this modified approach, district courts may “consult a limited class of documents, such as indictments and jury instructions, to determine which alternative element of a divisible statute formed the basis of the defendant’s prior conviction.” After “looking at all of the materials available to the court,” the district court held that the Arizona conviction qualified 16-level enhancement. On appeal, the Eighth Circuit reversed, holding that the district court erred by looking at the indictment in an effort to determine what the defendant actually did in committing the offense. “The modified categorical approach does not permit sentencing courts to do what the district court did in this case: look to an indictment to discover what the defendant actually did.” Descamps, at —-,133 S. Ct. at 2287. “A court may use the modified approach only to determine which alternative element in a divisible statute formed the basis of the defendant’s conviction.” Here, the defendant was convicted of an “unspecified (ergo categorically non-qualifying) violation. The modified approach thus has no role to play in this case.”
United States v. Henriquez
2014 WL 2900935 (4th Cir. 2014)
Prior Maryland conviction for first-degree burglary not crime of violence
The defendant pled guilty without a plea agreement to one count of unlawfully reentering the United States. The district court imposed a sentence of 41 months, based partially on a 16-level enhancement under §2L1.2(b)(1)(A)(ii), for a 2000 Maryland conviction of first degree burglary, which the PSR called a crime of violence. The defendant argued on appeal that the conviction for first degree burglary in Maryland was not a crime of violence because Maryland’s definition of burglary exceeded the scope of generic burglary as defined by the United States Supreme Court. Specifically, he argued that first degree burglary in Maryland lacked a necessary element of generi burglary – that the crime take place in a building or structure; therefore, because Maryland had not limited the term “dwelling” to buildings or structures, one could be convicted in Maryland of burglarizing boats or motor vehicles, which are enclosures that the Supreme Court has expressly excluded from the definition of generic burglary. The Fourth Circuit agreed, concluding: “Maryland’s first degree burglary statute encompasses ‘conduct that falls outside the generic definition’ of burglary. As a consequence, a Maryland conviction of first degree burglary cannot constitute a crime of violence for purposes of Section 2L1.2(b)(1)(A)(ii). The district court erred by applying that enhancement, and Defendant’s sentence must be vacated.”
United States v. Martin 2014 WL 2525214 (4th Cir. 2014)
Prior Maryland conviction for fourth-degree burglary not crime of violence under §2K2.1(a)(2)
The defendant pled guilty to a felon-in-possession charge. Because he had three prior convictions, including a 2007 Maryland conviction for conspiracy to commit robbery and a 2009 Maryland conviction for fourth-degree burglary (Md. Code Ann., Crim. Law §6- 205(a)), the district court assigned a base-offense level of 24, under §2K2.1(a)(2), finding that both were crimes of violence. On appeal, the defendant contended that under Begay v. United States, 553 U.S. 137 (2008), the offense could be considered a crime of violence only if fourth-degree burglary was (1) similar in kind to the enumerated offenses i.e., purposeful, violent, and aggressive; and (2) the degree of risk it poses is roughly similar to the degree of risk posed by burglary, the closest enumerated-crime analog. The Fourth Circuit reversed, holding that under the first Begay prong, “the potential risk of physical injury arising from the commission of fourth-degree burglary under Md. Code Ann., Crim. Law §6-205(a) is comparable to that arising from the commission of generic burglary.” However, under the second prong, “the [Maryland] statute can be violated by negligent conduct and therefore is not similar in kind to the offenses enumerated in §4B1.2 of the Sentencing Guidelines. The district court therefore erred by treating [the defendant’s] 2009 conviction for violating §6-205(a) as a crime of violence under the residual clause of §4B1.2(a)(2). Accordingly, we hereby vacate [the] sentence and remand for resentencing.”
United States v. Grant 2014 WL 2465024 (4th Cir. 2014)
General court-martial convictions qualified as violent felony convictions under ACCA
A jury found the defendant guilty of being a felon in possession of ammunition and the distric court classified him as an armed career criminal, in part due to two 1980 general court-martial convictions for violent crimes: (1) assault by inflicting grievous bodily harm, after he cut a fellow service member on the face with a razor blade; and (2) kidnapping, where he overtook two military officials who were transporting him while he was in custody for the assault, wrested an assault rifle from one of the officials, kidnaped the officials at gunpoint, and forced them to drive to another location. His sentencing range was calculated at 188 to 235 months and the district court ultimately sentenced him to 212 months. On appeal, relying on Small v. United States, 544 U.S. 385 (2005), the defendant argued that the language of §4B1.4 required that the prior convictions were “by any court” and that his prior convictions did not constitute predicate convictions because a general court-martial did not constitute “any court.” The Fourth Circuit affirmed the sentence, citing United States v. Martinez, 122 F.3d 421 (7th Cir. 1997) and United States v. MacDonald, 992 F.2d 967 (9th Cir. 1993), both of which held that “courts-martial constitute courts under the ACCA and §922(g)(1).” Further, the court explained that “the Armed Career Criminal Act focuses upon the special danger created when a particular type of offender a violent criminal or drug trafficker possesses a gun. In order to determine which offenders fall into this category, the Act looks to past crimes. This is because an offender’s criminal history is relevant to the question whether he is a career criminal, or, more precisely, to the kind or degree of danger the offender would pose were he to possess a gun. Including courtmartial convictions for violent felonies in the armed career criminal tabulation furthers Congress’s objective of identifying and deterring career offenders.” Finally, the court noted that the defendant “has not highlighted any ways in which using violent felony convictions by general courts-martial to classify individuals as armed career criminals would conflict with the ACCA’s provisions.” Therefore, using the general court-martial convictions to classify the defendant as an armed career criminal was proper.
Miscellaneous Issues
United States v. Vallone 752 F.3d 690 (7th Cir. 2014)
Ex post facto rights not violated
Three defendants in this conspiracy case argued that the ex post facto clause would be violated if the court sentenced them under the guidelines in effect at the time of their original sentencing. The guidelines had been amended in November 2001 to increase the tax loss tables from a base offense level of 25 for a tax loss of approximately $60 million to a base offense level of 30 at that tax loss. The defendants argued that the application of the post-November 2001 guidelines was improper as the conspiracy began in 1994, and while it ended in 2003, they were no longer involved in the conspiracy as of November 2001. The appeals court found that there was no violation of the ex post facto clause because conspiracy is a continuing offense, and the conspiracy ended in 2003. While the defendants claimed that they were no longer active participants after November 2001, this “does not mean that they had withdrawn from the conspiracy and could not be held culpable for what occurred after that point. . . . Simply ceasing to participate even for extended periods of time is not sufficient to show withdrawal.” As no defendant could cite to evidence of actual withdrawal from the conspiracy, the post-November 2001 guidelines could be used to determine the sentence without any ex post facto problem. The court also rejected the defendants’ argument that regardless of no evidence of actual withdrawal, the ex post facto clause was violated as 98-99 percent of the tax loss was incurred prior to November 2001. The court held that it was “immaterial” as to how much of the loss was occurred prior to November 2001; the material issue is the end date of the conspiracy. The sentences were affirmed.
United States v. Mackay 2014 WL 2900929 (5th Cir. 2014)
Clerical error in PSR was not harmless
The defendant pled guilty to conspiracy to distribute and possession with intent to distribute
marijuana. Thirteen years after the judgment of conviction was entered, he filed a pro se motion with the district court under Federal Rule of Criminal Procedure 36, to correct a clerical error on the cover sheet of his PSR and the judgment, which listed his offense as involving cocaine instead of marijuana. Rule 36 allows a district court to correct a clerical error in a judgment, order or other part of the record at any time. The district court corrected the
judgment, but refused to correct the PSR, finding that the PSR was not a court order that could be corrected under Rule 36. Despite the government’s creative arguments, the Fifth Circuit held that a district court could correct clerical errors in a defendant’s PSR under Rule 36. The court held that because “the PSR affects the rights and obligations of the defendant, we conclude it is of like kind or character as a ‘judgment’ or ‘order’ and that it is embraced by the terms ‘other part of the record’ as used in Rule 36.” The court found that the defendant had been harmed by the error, reversed and remanded instructing the district court to correct the clerical error in the PSR.
Cases In This Issue
United States v. Adepoju, 2014 WL 2809014 (4th Cir. 2014)
United States v. Brooks, 751 F.3d 1204 (10th Cir. 2014)
United States v. Collins, 2014 WL 2598767 (8th Cir. 2014)
United States v. Dougherty, 2014 WL 2800791 (11th Cir. 2014)
United States v. Farmer, 2014 WL 2808079 (7th Cir. 2014)
United States v. Garcia-Figueroa, 753 F.3d 179 (5th Cir. 2013)
United States v. Grant, 2014 WL 2465024 (4th Cir. 2014)
United States v. Hairston, 2014 WL 2600057 (4th Cir. 2014)
United States v. Harrell, 2014 WL 1910342 (11th Cir. 2014)
United States v. Hemphill, 2014 WL 1758416 (5th Cir. 2014)
United States v. Henriquez, 2014 WL 2900935 (4th Cir. 2014)
United States v. Herrera-Alvarez, 2014 WL 2131549 (5th Cir. 2014)
United States v. Isaccson, 2014 WL 2119820 (11th Cir. 2014)
United States v. Johnson, 2014 WL 2854996 (7th Cir. 2014)
United States v. Jones, 2014 WL 2616892 (5th Cir. 2014)
United States v. Lucero, 747 F.3d 1242 (10th Cir. 2014)
United States v. Mackay, 2014 WL 2900929 (5th Cir. 2014)
United States v. Martin, 2014 WL 2525214 (4th Cir. 2014)
United States v. Martinez, 2014 WL 2922312 (8th Cir. 2014)
United States v. Massam, 2014 WL 1779232 (11th Cir. 2014)
United States v. Murillo-Acosta, 751 F.3d 682 (5th Cir. 2014)
United States v. Palacios, 2014 WL 2119096 (5th Cir. 2014)
United States v. Payton, 2014 WL 2609612 (6th Cir. 2014)
United States v. Pena, 751 F.3d 101 (2nd Cir. 2014)
United States v. Purham, 2014 WL 2566079 (7th Cir. 2014)
United States v. Rangel-Guzman, 752 F.3d 1222 (9th Cir. 2014)
United States v. Razo-Nunez, 2014 WL 1979877 (D.C. Cir. 2014)
United States v. Rodriguez-Lopez, 2014 WL 2884677 (5th Cir. 2014)
United States v. Vallone, 752 F.3d 690 (7th Cir. 2014)
