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Posts Tagged ‘Shepard’

The Fourth Circuit issued a published opinion today in United States v. Donnell reversing a sentencing determination that treated a Maryland conviction for second-degree assault as a violent felony based on facts set forth in a statement of probable cause not expressly incorporated into the statement of charges. The opinion was unanimous. Judge Davis authored the opinion, which was joined in by Judges King and Keenan.

The panel that issued this opinion is the same panel that heard oral argument in the U.S.S. Nicholas piracy case. That was the second case argued that morning; Donnell was the first. I recall from the argument that federal public defender arguing on behalf of Donnell, Paresh S. Patel, was a particularly effective oral advocate.

One of the key issues in the appeal is whether a statement of charges incorporated a statement of probable cause. That deceptively simple formulation of the issue masks some unclarity in Fourth Circuit precedent about what constitutes incorporation, some of which is addressed in the Donnell opinion. The difficulty facing the Donnell court, it appears, is that prior panels had finessed (or neglected) an important distinction in describing the manner in which statements of probable cause are or are not incorporated into a statement of charges under Maryland law. To see how the Donnell opinion resolves the issue, read the whole thing and decide what you think.

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One of the more unusual aspects of the two Fourth Circuit decisions issued yesterday came at the tail end of United States v. Taylor, in a partial dissent authored by Judge Davis.  The appeal involved, among other things, a sentencing enhancement imposed after application of the “modified categorical” approach under the Armed Career Criminals Act (“ACCA”).

As the fractured en banc opinions in the Fourth Circuit’s recent decision in United States v. Vann reveal, the court of appeals is deeply riven over the correct approach to sentencing enhancements using the modified categorical approach to analyzing what constitutes a violent felony under the ACCA. Even so, Judge Davis’s concluding advice about appellate strategy in Taylor is unusual in its directness.

After alluding to the “vagaries of the Supreme Court’s sentencing jurisprudence under the [ACCA],” Judge Davis contends that “only the Supreme Court itself can provide the clarification so urgently needed.” He continues: “In that spirit, I would suggest that [appellant’s] counsel . . . save the taxpayers a few dollars and forego the customary petition for rehearing in this case and seek certiorari without inordinate delay.”

This is an unusual piece of advice to offer. It raises questions: Is Judge Davis suggesting that a petition for rehearing would be futile? If so, would that futility be apparent absent the implicit suggestion of futility? Should the statement be interpreted as directed more at other Fourth Circuit judges and at Supreme Court Justices than at counsel for appellant? Is this good advice, given the ferment in the Fourth Circuit over the application of ACCA enhancements and the low probability of Supreme Court review?

With respect to the last question, it is perhaps worth recalling the identity of the other panel judges. Judge Wilkinson authored the majority opinion and Judge Motz joined in that opinion. I have not undertaken independent research into each of these jurist’s views on the ACCA in relation to the views of their colleagues on the Fourth Circuit. As a general matter, however, it is usually a safe bet that there is not an en banc majority to overturn a panel opinion authored by Judge Wilkinson and joined in by Judge Motz.

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In addition to yesterday’s decision on gun possession in motorcycle gangs, the Fourth Circuit issued a published opinion in another gun case: United States v. Taylor. The decision came in the consolidated appeals of Daryl Taylor and Antwan Thompson from a jury verdict convicting them of being felons in possession of a firearm under 18 U.S.C. § 922(g).

Judge Wilkinson wrote the opinion for the court, which was joined in by Judge Motz. Judge Davis authored a separate opinion concurring in part and dissenting in part.

The panel unanimously agreed on the disposition of the appellate issues raised with respect to the conviction and sentence of Daryl Taylor.

The disagreement about Antwan Thompson’s sentence centered on the propriety of a 15-year mandatory minimum under the ACCA due to Thompson’s prior felony convictions. Thompson had three relevant prior convictions: two for cocaine offenses and one for second-degree assault under Maryland law. His argument on appeal was that his assault conviction was not a “violent felony” under the ACCA.

The panel majority applied the modified categorical approach, according to which a court can look at certain materials such as charging documents, plea agreements, and transcripts of plea colloquys, to determine whether the conviction was necessarily for a violent felony.

The panel majority rested on the facts set forth in a plea colloquy, according to which Thompson, in resisting arrest for a drug deal, had thrown a Styrofoam cup of liquid at one police officer and scuffled intensely with three of them, leading to a charge for assaulting the officer on the receiving end of the thrown cup of liquid. Thompson argued that he did not admit the facts set forth by the judge in the plea colloquy, but rather that the record showed only that his lawyer did not dispute those facts.

The panel majority holds Thompson to the representations made by his lawyer. By contrast, Judge Davis argues that the attorney’s say-so in declining to make any corrections or additions cannot be treated as the defendant’s confirmation of the facts set forth by the judge.

This area of the law is not one that I specialize in, but my quick take on the governing precedent as a generalist observer is that Judge Davis is parsing Shepard too finely and that the panel majority is justified in treating Thompson’s assault conviction as one for a “violent felony.”

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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. (more…)

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