Everything but footnote 8

The opinion line-up for United States v. Bell, a recent Fourth Circuit opinion ordering resentencing in a drug case, showcases a defection by two of the three judges. It reads as follows:

Judge Davis wrote the opinion, in which Judge Floyd and Senior Judge Hamilton joined except as to footnote 8. Senior Judge Hamilton wrote an opinion concurring in part and concurring in the judgment, in which Judge Floyd joined.

The defecting-inducing footnote states, in part:

Perhaps in some future case we might be required to decide whether a defendant in circumstances similar to Bell’s bears a burden of production as to his or her personal consumption of a validly prescribed medication. But that question is not before us; in this case, whatever burden of production Appellant Bell may have had was satisfied by the very evidence produced by the government itself, along with the drug screens and evidence of her longstanding legitimate medical needs. Thus, to the extent the concurrence purports to announce a rule imposing an “obligation” on such a defendant to produce evidence of personal consumption at sentencing, it constitutes mere dicta and, in any event, was not argued by the government.

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Yet another sentence vacated in light of en banc decision in Simmons

The Fourth Circuit yesterday vacated another enhanced sentence under the Armed Career Criminal Act in light of its August 2011 8-5 en banc decision in United States v. Simmons (prior discussions here and here). The panel that issued the unpublished per curiam opinion in United States v. Bellamy was composed of Judges Motz, Agee, and Wynn.

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Catching up with the Fourth Circuit’s five published opinions this past week (and one from the prior week)

It’s been a busy week here in Richmond, and I’ve fallen behind a bit in passing along notable Fourth Circuit opinions. Here’s a catch-up post reporting on six published opinions: five from this past week, and one from the week before that.

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En banc Fourth Circuit is 10-2 on outcome and 5-4-1-2 in opinions (with the 5-judge, 2-judge, and 1-judge opinions in agreement on a crucial issue for future cases, though perhaps not aggregable to establish that point in this case)

It has taken me some extra time to post about the Fourth Circuit’s en banc decision earlier this week in United States v. Vann because it has taken me a long time to get through the 100 pages of opinions. The issue in the case is whether a certain individual’s three convictions under North Carolina’s indecent liberties statute qualify as convictions for a “violent felony” under 18 U.S.C. § 924(e)(2), thereby triggering a mandatory minimum sentence under the federal Armed Career Criminal Act (“ACCA”). The short answer, for this defendant, is no. But whether any convictions for violating the indecent liberties statute can qualify as a “violent felony” in some other case remains unclear. (The write-ups by Jonathan Byrne at Fourth Circuit Blog and Matt Kaiser at his law firm’s blog provide a helpful overview of the opinions and issues.)

The simplest way of understanding the en banc decision, at one level, is in relation to the vacated panel opinion. Judge Niemeyer authored that split decision, which Judge Shedd joined. Judge King dissented. The panel opinion had affirmed the application of the ACCA 15-year mandatory minimum.

The en banc court consisted of twelve judges: Chief Judge Traxler, and Judges Wilkinson, Niemeyer, Motz, King, Gregory, Shedd, Agee, Davis, Keenan, Wynn, and Diaz. (Judge Duncan did not participate and Judge Floyd was not yet on the court.) By a 10-2 vote, the en banc court voted to vacate the sentence. The only two judges supporting the panel opinion are the two judges who joined it initially (Judges Niemeyer and Shedd). But the other 10 judges on the en banc court split 5-4-1 on their reasoning.

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All quiet in Richmond lately . . .

Hurricane Irene brought peace (eirene) of a sort to Richmond. Without power, there is only so much that one can do. And many in Richmond have been, and remain, without power.

The Fourth Circuit has not done much this week. Until today, there were no opinions in argued cases. The one opinion issued today breaking this week’s argued-case silence is United States v. Martin.The decision affirms an illegal sentence under plain-error review. One suspects there may be more to the case than revealed in the relatively spare unpublished per curiam opinion released today. The case was argued on December 10, 2010, before a panel consisting of Justice O’Connor, Chief Judge Traxler, and Judge Keenan. It is unusual for an opinion to take this long to be issued.

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Another sentence vacated in light of en banc decision in Simmons

The Fourth Circuit’s en banc decision last week in United States v. Simmons changed the way that the Fourth Circuit analyzed prior North Carolina convictions for sentencing enhancement under the Armed Career Criminal Act. (See here for my earlier discussion of this decision.) The day after Simmons was handed down, a panel vacated the sentence for a drug conspiracy in United States v. Morton. Today brings news of another sentence vacated under Simmons–an almost 20-year sentence (235 months) in United States v. Trent. The ACCA sentencing enhancement had raised Trent’s sentencing range from 120-150 months to 235 to 293 months.

Trent’s arrest and prosecution followed a car chase in which Trent “drove faster than 100 miles per hour into oncoming traffic,” lost control of his Ford Taurus, and crashed into a commercial storefront. While escaping out a side door, Trent was observed dropping an object “about the size of his hand.” Officers ran down Trent and his passenger. A search of the car revealed a handgun and drug paraphernalia. Trent was convicted of being a felon in possession of a firearm. Among the predicate convictions relied upon by the government for a sentencing enhancement under ACCA were two convictions for felony speeding to elude arrest. The facts underlying those two convictions closely resembled the car chase that resulted in his federal prosecution. “[I]n all three incidents, Trent drove recklessly, wrecked his vehicle, fled on foot from police, and then attempted to dispose of his firearm.” Because Trent could not have been sentenced to more than one year imprisonment for each of those prior attempts, in light of the framework supplied by Simmons, those two prior convictions could not be used as the basis of the ACCA enhancement that Trent received.

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En banc Fourth Circuit votes 8-5 on GVR’d case, departing from earlier unanimous panel decision joined by Justice O’Connor

The Fourth Circuit’s 8-5 en banc decision in United States v. Simmons holds that the Fourth Circuit’s earlier decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005), “no longer remains good law” in light of a Supreme Court decision interpreting a different statute.

At issue in Simmons and Harp is how to determine whether a particular offense under North Carolina law is “punishable by imprisonment for a term exceeding one year,” and therefore qualifies as a predicate felony conviction under the federal Controlled Substances Act. To simplify (perhaps oversimplify): The old approach (in Harp) looked to the offense itself and asked whether any defendant prosecuted for that offense could be eligible for punishment of more than one year. The new approach (in Simmons) looks to the maximum punishment for which the offender was eligible based on the particular facts that dictated where the offender’s sentence fell in North Carolina’s structured sentencing scheme.

Simmons’s prior offense of possession with intent to sell no more than ten pounds of marijuana was a Class 1 felony under North Carolina law. A Class 1 felony is punishable by a sentence exceeding one year’s imprisonment if certain conditions are satisfied. Those conditions were not satisfied with respect to Simmons’s prior offense. The Fourth Circuit held, consequently, that Simmons was not eligible for the 10-year statutory minimum under the federal Controlled Substances Act.

Judge Motz wrote the majority opinion, which was joined by Judges King, Gregory, Shedd, Davis, Keenan, Wynn, and Diaz. Judge Agee authored the principal dissent, joined by Chief Judge Traxler and Judges Wilkinson, Niemeyer, and Duncan. Judge Duncan also authored a solo dissent.

The decision appears noteworthy for a few reasons.

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Second (non-healthcare) decision from the Fourth Circuit panel that heard the challenges to the individual mandate

On May 10, 2011, a three-judge panel of the Fourth Circuit composed of Judge Motz, Judge Davis, and Judge Wynn heard arguments in two cases challenging the individual mandate in the Affordable Care Act. The opinions in those two cases have yet to be released. That same morning, the panel also heard arguments in two criminal cases, United States v. Dietz and United States v. Darcus.

On May 20, the panel issued an unpublished order dismissing the appeal in United States v. Darcus. The appeal was from a conviction based on a plea agreement that included a waiver of the right to appeal. The government sought to enforce the waiver by means of a motion to dismiss, and the Fourth Circuit granted the motion. The order was entered by Judge Davis, with the concurrence of Judge Motz and Judge Wynn.

This past Thursday, August 18, the panel issued an opinion affirming the conviction and sentence in United States v. Dietz, the other non-healthcare case from the May 10 panel. Judge Wynn wrote the opinion, which was unpublished and unanimous.

The opinion rejects challenges to evidentiary rulings, the denial of a motion to substitute counsel, and a challenge to the sentence (which was 35 years’ imprisonment, a variance from the Guidelines lifetime imprisonment sentence). The underlying kidnapping and carjacking crimes arose out of two romantic relationships, which culminated in Dietz’s arrest after a twelve-hour hostage situation. Among Dietz’s demands was for “a solicitor, or Georgia state prosecutor, ‘to agree to not make any charges.'” The opinion does not say whether such an agreement was made. In any event, Dietz does not appear to have made a similar demand of the federal government, which ultimately prosecuted him.

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Fourth Circuit, Following Justice Sotomayor’s Solo Opinion in Fractured Freeman Decision, Reverses Crack Sentencing Reduction

In United States v. Brown, the United States Court of Appeals for the Fourth Circuit reversed a district court’s sentence reduction. Judge Shedd wrote the opinion, which Judge Wilkinson and Judge Duncan joined.

Congress has provided that a sentencing reduction may be granted “in the case of a defendant who has been sentenced . . . based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. 3582(c)(2). Brown’s sentence had been entered pursuant to a Rule 11(c)(1)(C) plea agreement that stipulated a sentencing range. Even though Congress later amended the sentencing guidelines that informed the range stipulated in the agreement, the court held that the sentence could not be reduced pursuant to 3582(c)(2).

The Fourth Circuit’s decision was dictated by the Supreme Court’s fractured opinions in Freeman v. United States, in which the Court split 4-1-4. Four Justices held that a sentence entered pursuant to a Rule 11(c)(1)(C) agreement was never eligible for relief under 3582(c)(2) because the resulting sentence was based on the agreement, not on a Guidelines range. But another four Justices held that 3582(c)(2) always allowed for relief. Justice Sotomayor held that a sentence entered pursuant to 11(c)(1)(C) was eligible for relief if, but only if, the plea agreement itself explicitly referenced a sentencing guideline. Treating Justice Sotomayor’s opinion as controlling, the Fourth Circuit affirmed the sentence ordered pursuant to the agreement because it did not explicitly incorporate a particular guideline.

The decision is not notable for revealing anything about the Fourth Circuit, which had no discretion to rule as it did in light of Freeman. The decision is notable, instead, for starkly illustrating how the hierarchical nature of the federal court system dictates a certain outcome, even while the process by which it does so can legitimately be questioned. The decision also highlights how Freeman can be taken to stand for an unusual 5-4 split, one that aligns Sotomayor with Roberts, Scalia, Alito, and Thomas while placing Kennedy with Ginsburg, Breyer, and Kagan.

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