Articles Posted in Criminal Law

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The Fourth Circuit granted a petition for review of the BIA's determination that petitioner was removable under the Immigration and Nationality Act (INA) based on his commission of a crime involving moral turpitude within five years of his admission to the United States. The court explained that it was DHS's burden to affirmatively prove (by clear and convincing evidence) that petitioner last entered in 2000 without inspection, and was therefore not admitted until 2008, because this determined whether his 2012 felony abduction offense fell within the five-year window for removability. The court held that DHS failed to prove that petitioner was admitted in 2008. In this case, the record contained essentially unrebutted evidence showing that petitioner was in Peru from 1999 to 2001, and that he presented himself for inspection and was allowed to enter the United States at Reagan National Airport in 2002 (whether on a visa or otherwise). View "Mauricio-Vasquez v. Whitaker" on Justia Law

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In 2004, after pleading guilty to selling crack cocaine to a government informant, Lester was sentenced to almost 22 years in prison because he was designated a career offender under the then-mandatory Sentencing Guidelines. This enhancement depended on a past conviction for a “crime of violence,” Lester’s 1990 Georgia conviction for walkaway escape. In 2005, the Supreme Court stripped the Sentencing Guidelines of legal force and made them purely advisory; in 2009, the Court ruled that the generic crime of failing to report to a prison was not a crime of violence. Lester’s sentence should have been up to 11 years shorter. Lester sought habeas corpus relief. The district court denied his petition. The Fourth Circuit vacated, noting that its 2018 decision in United States v. Wheeler permits Lester’s challenge although Lester had already filed a petition under 28 U.S.C. 2255. In limited circumstances, courts, including the Fourth Circuit, allow a prisoner otherwise unable to file a second or successive section 2255 petition to seek relief under 28 U.S.C. 2241. A sentencing error “need not result in a sentence that exceeds statutory limits in order to be a fundamental defect.” Lester’s case must be considered on the merits. View "Lester v. Flournoy" on Justia Law

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MDENT, a Charleston drug task force, investigated Terry after an officer found remnants of drugs in trash outside of a residence associated with Terry. An MDENT agent acquired a search warrant for Terry’s residence. Agents followed Terry to a store. Once Terry had parked, Corporal Johnson approached the car and smelled marijuana. Terry turned over a small amount of marijuana. Johnson searched the car. Nothing more was found. Meanwhile, another MDENT agent surreptitiously placed a GPS tracker onto the car. No contraband or incriminating evidence was found in the residence. Afterwards, Johnson obtained a warrant to “ping” Terry’s cell phone and to place a GPS tracker on the car. Two days later, agents relied solely on the GPS data to track the car to Ohio, where they suspected Terry obtained drugs. After the car returned, the officers followed it and determined that it was speeding at five miles above the posted speed limit of 45 MPH. Officers pulled the car over. Tamara, the car’s owner, was driving. Terry was a passenger. Johnson wrote Tamara a warning citation while another officer spoke with Terry and informed Johnson that he smelled marijuana, Johnson ordered Terry out of the car and performed a pat-down. Officers discovered 195.5 grams of methamphetamine and 2.9 grams of marijuana. Although the district court found that MDENT’s conduct constituted a flagrant constitutional violation, it denied Terry’s motion to suppress on the basis of standing. The Fourth Circuit vacated. Terry had standing and the discovery of the evidence seized during the traffic stop was not sufficiently attenuated from the unlawful GPS search to purge the taint. View "United States v. Terry" on Justia Law

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A Newport News police officer pulled over Brown’s car for a traffic violation; he smelled alcohol and observed that Brown had slurred speech. A preliminary breath test measured a blood alcohol content of approximately 0.23, over the legal limit for driving in Virginia. Officers informed Brown that he was under arrest and instructed him to put his hands behind his back. Brown attempted to flee. Officers pursued him on foot, seized and handcuffed him, then recovered a firearm that had fallen from Brown’s pants leg. Officers searched the vehicle and recovered bags containing 3.59 grams of cocaine. Brown pleaded guilty to possession of a firearm by a convicted felon, 18 U.S.C. 922(g)(1). A PSR gave Brown three criminal history points for a 2008 state conviction for possession with intent to distribute cocaine and added two points under USSG 4A1.1(d) because Brown committed the instant offense while “under a criminal justice sentence.” Brown was sentenced to 10 years’ incarceration for the 2008 conviction, with eight years and nine months suspended, conditioned on good behavior for 10 years upon release. The PSR calculated a guidelines range of 57-71 months. The Fourth Circuit affirmed a 60-month sentence, agreeing that a period of good behavior qualifies as being under a criminal justice sentence. Although Brown wasn’t under active supervision, he was subject to the authority of the state court, which could revoke the suspended sentence if Brown violated the condition. View "United States v. Brown" on Justia Law

Posted in: Criminal Law

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Allen pleaded guilty to the unlawful possession of firearms by a convicted felon, 18 U.S.C. 922(g)(1) and 924(a)(2). His PSR reported that, in 2009, Allen was convicted of using a communication facility to facilitate the crime of possession with intent to distribute cocaine base, 21 U.S.C. 843(b), and, in 2007, Allen was convicted of two North Carolina misdemeanors--possession of marijuana in an amount less than or equal to one-half ounce, and second-degree trespass. Those misdemeanor convictions were consolidated into one judgment for sentencing. The district court increased Allen’s base offense level under USSG 2K2.1(a)(2), based on his two prior felony convictions of “controlled substance offenses,” including his Section 843(b) conviction; added one point to Allen's criminal history score under USSG 4A1.1(c) based on the North Carolina consolidated judgment; determined that Allen’s Guidelines range was 84-105 months, varied downward, and imposed a sentence of 77 months’ imprisonment. The Fourth Circuit affirmed. The Section 843(b) commentary states that a Section 843(b) conviction is a “controlled substance offense” if the “underlying offense” is a “controlled substance offense.” Allen’s 2009 judgment shows that he used a communication facility to facilitate the underlying offense of possession with intent to distribute cocaine base, which is a “controlled substance offense.” The district court properly added one criminal history point for the North Carolina consolidated judgment. View "United States v. Allen" on Justia Law

Posted in: Criminal Law

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Lawlor worked at a Fairfax County apartment complex and had access to keys to each apartment. On September 24, 2008, Lawlor consumed alcohol and a large amount of crack cocaine and sexually assaulted, bludgeoned, and killed a tenant in that complex, Genevieve Orange. A Virginia state court sentenced Lawlor to death; the sentencing jury found that there was a probability Lawlor “would commit criminal acts of violence that would constitute a continuing serious threat to society,” Va. Code 19.2–264.4.C. Lawlor exhausted state court direct appeal and post-conviction remedies then sought review of his death sentence under 28 U.S.C. 2254. The district court dismissed his petition. The Fourth Circuit reversed. The state court excluded specialized and relevant testimony of a qualified witness who would have explained that Lawlor “represents a very low risk for committing acts of violence while incarcerated,” where the jury’s only choices were life in prison without parole or death. That ruling was an unreasonable application of clearly established Supreme Court precedent that “evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating,” and “such evidence may not be excluded from the sentencer’s consideration.” The error had a substantial and injurious effect. View "Lawlor v. Zook" on Justia Law

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The Fourth Circuit affirmed Defendants Zelaya, Ordonez-Vega, Sosa, and Gavidia's convictions of participating in a racketeering conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO); Zelaya, Ordonez-Vega, and Sosa's conviction of committing violent crimes in aid of racketeering (VICAR) and using a firearm in furtherance of a crime of violence; and Gavidia's sentence. The court held that the district court did not err by denying defendants' motions for acquittal under Rule 29; the district court correctly defined the "purpose" element in its jury instructions regarding the VICAR offense; there was no error in the admission of testimony from two New York police officers; the district court did not err by refusing to sever Sosa and Gavidia's trials from the trials of Zelaya and Ordonez-Vega; Sosa and Gavidia were not entitled to mistrials; and Gavidia's sentence was substantively and procedurally reasonable. View "United States v. Zelaya" on Justia Law

Posted in: Criminal Law

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The Fourth Circuit affirmed the district court's denial of defendant's motion to suppress evidence of child pornography from a cell phone. The court held that, while the warrant affidavit alone did not establish probable cause, the evidence was admissible under the good faith exception to the exclusionary rule articulated in United States v. Leon, 468 U.S. 897 (1984). Under the circumstances, the officer had a reasonable basis to believe that there was probable cause to search the phone. View "United States v. Thomas" on Justia Law

Posted in: Criminal Law

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The Fourth Circuit affirmed defendant's resentence for time served, followed by two years of supervised release to expire in April 2019. The court held that the case was not moot where defendant received a unitary sentence and a challenge to that sentence presented a live controversy, even though he has served the custodial portion of the sentence. The court held that, although the district court procedurally erred by imposing a time-served sentence that amounted to an unexplained variance from the Sentencing Guidelines, the error was harmless. View "United States v. Ketter" on Justia Law

Posted in: Criminal Law

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The Fourth Circuit affirmed defendant's conviction for several firearm and drug related offenses. The court held that the district court did not abuse its discretion in denying defendant's request to interview jurors, because juror interviews were unlikely to reveal evidence that racial animus was a significant motivating factor in the jury's vote to convict. The court also rejected defendant's claims of evidentiary error regarding the testimony of a detective and evidence of prior bad acts, and held that the district court did not abuse its discretion in admitting the testimony and evidence. View "United States v. Birchette" on Justia Law

Posted in: Criminal Law