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Charles Williams, Jr. was driving a rented car through central North Carolina in February 2012 when he was stopped for speeding. As is typical in a traffic stop, the deputy sheriff collected Williams’s documentation, issued a written warning, and then returned the documents. After all that occurred, a second deputy conducted a dog sniff of the car. The dog alerted to the trunk of the car and a search revealed crack cocaine in the trunk. Williams and his girlfriend were both arrested.1

Like most Fourth Amendment cases, this one turns on a constellation of facts that are uniquely arrayed in the case. But, since traffic stops and subsequent dog sniffs happen so frequently, the issue of what is reasonable articulable suspicion sufficient to extend a routine traffic stop into an investigatory stop matters.

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On December 15th the D.C. Circuit overturned for plain procedural error a severe sentence in another of those child pornography sting operation cases that appear with some frequency in this jurisdiction.

In a split opinion that is somewhat remarkable for its composition (Senior Circuit Judge Edwards and Circuit Judge Henderson comprising the majority with Senior Circuit Judge Sentelle dissenting) the Circuit reversed the conviction of James Brown, a defendant with a seeming penchant for sexual relations with underage females, including his daughter and at least one granddaughter. The Court found that the district court had plainly erred in sentencing Mr. Brown to a 144-month prison term, which was 47 months in excess of a jointly-requested low end of the Guidelines range and 23 months above the high end. In finding procedural error, the court sidestepped the appellant’s alternative claim of substantive unreasonableness. In particular, the panel found that the lower court’s explanation for an above-Guidelines sentence was inadequate under United States v. Akhigbe, 642 F.3d 1078, 1085-86 (D.C. Cir. 2011)).

Writing for the majority, Judge Edwards found that the district court had plainly failed to provide adequate in-court and written explanations for imposing a sentence that neither the prosecution nor the defendant had sought. Describing the Trial Judge’s in-court characterization of Brown’s conduct “spare and unparticularized,” the panel pointed out that the lower court’s explanation for the above-Guidelines sentence to have been a “‘mere recitation of . . . § 3553(a) factor[s] without application to the defendant being sentenced [which] does not demonstrate reasoned decisionmaking or provide an adequate basis for appellate review.’” (slip op. at 12) (quoting Akhigbe, 642 F.3d at 1086). Nor did the trial judge’s “unparticularized references to “actual abuse of children’ and ‘predatory conduct’ provide [any] basis for suggesting why the conduct described was more harmful or egregious than that accounted for in the Guidelines calculation, let alone why that conduct merited a sentence 23 months in excess of the applicable Guidelines range.” (slip op. at 12-13). In a similar vein, the Court found “unenlightening” the trial judge’s comment that “the combination of behaviors to which Brown pled is ‘not conduct we normally get around here,’” for that comment failed to explain why Brow’s behavior “was more egregious or harmful than that accounted for by the applicable Guidelines calculation.” (Id. at 3-14).

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In a memorable Saturday Night Live sketch following the power failure that inserted a long intermission in the middle of Super Bowl XLVII, cast members parodied the frazzled NFL commentators desperately trying to fill the empty airtime. Each time the in-studio commentators ran out of things to say, they would bark “Back to you!”, sending the feed to the on-field commentator. The on-field commentator would scramble for insights for a few seconds, then free himself with a “Back to you!”, punting the feed back to the studio. When the latter sent the feed back too quickly, the former angrily objected: “You can’t ‘Back to you’ me – I just ‘Back to you’d you!” It was a humorous, but accurate, portrayal of the frustration and awkwardness that ensues when no one knows just what to do, but everyone knows they have to do something.

Wondering what this has to do with restitution in child porn cases? Everything. Liability for child porn offenses extends well beyond the person who directly abuses the child. It also draws in those who possess and distribute images created by the original abuser, perhaps long after the abuse is over. The notion that theirs is a victimless crime has been rejected, on the rationale that each possession and distribution re-victimizes the victim. All well and good as far as it goes – but how are courts to assign this somewhat abstract concept a dollar value in individual cases? After all, thousands of offenders may possess and view images of any particular victim over the course of years or decades, and generally they come before the court one at a time.

The question cannot be avoided, because Congress provided that restitution for “the full amount of the victim’s losses,” including losses “suffered by the victim as a proximate result of the offense,” is mandatory. 18 U.S.C. § 2259. After much consternation in the circuit courts, the Supreme Court took on the question last year, and . . . punted? The majority in Paroline v. United States, 134 S. Ct. 1710 (2014), confirmed that courts must award restitution “in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.” For a defendant who is one of possibly thousands who only possessed or distributed images, the award should fall somewhere between “token” and “severe.”

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Rodney Vinson allowed police officers to search his house. The officers found a rifle and ammunition. We don’t know why the police were at his home or whether they were looking for guns or something else, but in keeping with a theme from United States v. McLeod, we again are interested in what happened in a state court years before the federal case.

Mr. Vinson had pleaded guilty to a misdemeanor offense in North Carolina that the government contended was a misdemeanor crime of domestic violence (MCDV). A conviction for an MCDV bars someone from possessing a firearm, but if the conviction is for a crime that is not an MCDV, as Mr. Vinson argued, he did not violate any federal laws by owning a rifle.

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Gregory McLeod pleaded guilty to being a felon in possession of a firearm. The Government sought an enhanced penalty under the Armed Career Criminal Act (ACCA), arguing that Mr. McLeod had at least three prior violent felony convictions, all of which were South Carolina second-degree burglaries. If the Government was right, and the District Court believed it was, Mr. McLeod faced a prison term of fifteen years to life. If Mr. McLeod was right, he faced no more than ten years in prison. The Fourth Circuit doesn’t tell us more about the facts of his offense because what we really care about is what happened in South Carolina state court in 1998.[1]

Mr. McLeod had a total of five convictions for second degree burglary. The District Court found that all five convictions were violent felonies. The indictments in “those cases charged McLeod with breaking and entering a commercial building with the intent to commit a crime.” Seems simple enough, right? But sometimes a state burglary isn’t a federal burglary.

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There have not been many decisions from the D.C. Circuit in recent months – criminal or otherwise. But a rare reversal in an unusual coram nobis proceeding is worth mentioning as we swing into those grey winter months.

In an opinion remarkable for its turnaround – announced only 45 days after oral argument – the Circuit concluded that Kerry Newman, a permanent resident alien since 1980, had established one viable ground on which to claim that his defense counsel might have rendered ineffective assistance by providing erroneous advice at sentencing about the potential consequences of a guilty plea to a felony offense. United States v. Newman, _ F.3d _, 2015 U.S. App. LEXIS 1988 (D.C. Cir., Oct. 2, 2015).

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Gentle readers,

As you know, we’ve had precious little content here at the Federal Criminal Appeals Blog. So, starting this week, we’re trying something new – having other folks write posts.

Please let us know how we’re doing with this. Feel free to send me an email with feedback. Please let me know what you think. And you’ll see bio information for the authors who are writing here – feel free to reach out to them as well.

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This blog used to be great. It was a useful tool for those of us in the trenches of defending people accused of crimes in federal court.

Alas – my workload has been such that the blog has slipped as a priority. (Also I’ve been writing over at Above the Law).

For that reason, and at the suggestion of a former reader, I’m asking for help.

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The big news in this batch of opinions is not the conspiracy to import lobsters case, but, rather the Barry Bonds appeal.

Mr. Bonds was prosecuted for evading a prosecutor’s questions while testifying in a grand jury. And, now, thanks to an en banc panel of the Ninth Circuit, his conviction was reversed because giving a nonresponsive answer is not a crime. Though just about any teenager could tell you that.

To the victories:

you win.jpg1. United States v. Bengis, Second Circuit: Appellants were convicted of conspiracy to import lobsters from South African waters in violation of both South African and U.S. law. The district court imposed a restitution order, holding each of the Appellants jointly and severally liable for the market value of all of the lobsters harvested. The Second Circuit reversed the order as to one of the Appellants, who had joined the conspiracy later than the others. The court held that the Appellant was only liable for the value of lobsters taken before he joined the conspiracy if he knew, or reasonably should have known, about the conspiracy’s past imports. The court remanded for the district court to make this determination.

2. United States v. Sandidge, Seventh Circuit: After Appellant pled guilty to being a felon in possession of a firearm, the sentencing court imposed several standard and special conditions of supervised release. The Seventh Circuit vacated all of these conditions because the sentencing court offered no explanation as to their propriety, and conducted no review of the statutory sentencing factors. The court noted that several of the conditions were too vague, including requirements that Appellant meet “family responsibilities” and “not associate with any persons engaged in criminal activity.” The court also noted that several conditions were broader than necessary, such as a requirement not to “consume . . . any mood-altering substances.” The court remanded for resentencing on the issue of conditions of supervised release.

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It’s a catch-up blast of short wins today following my Spring Break.

My favorite of the bunch, continuing on our recent restitution cases, is United States v. Foley. There, the district court ordered restitution that was outside the offense of conviction. The First Circuit reversed. Go First Circuit!

To the victories!

you win.jpg1. United States v. Molina-Gomez, First Circuit: The district court erred by denying Appellant’s motion to suppress statements he made to United States Customs and Border Protection officers. The questioning occurred in a small, windowless room and Appellant was not given Miranda warnings prior to being questioned, which amounted to a violation of his Fifth Amendment rights. The case was remanded so Appellant could withdraw his plea and determine how he would like to proceed.

Defense Attorneys: Leonardo M. Aldridge-Kontos, Hector E. Guzman-Silva, Jr., Hector L. Ramos-Vega, and Lisa L. Rosado-Rodriguez
2. Perry v. Roy, First Circuit: Appellant, an inmate, brought a civil rights suit challenging the medical treatment he received after a violent scuffle with prison guards, which left him with a broken jaw. The trial court dismissed the case, holding that Appellant had not presented evidence that prison medical personnel deliberately denied him care. But the First Circuit concluded that the trial court had improperly weighed the evidence, which, when viewed in a light favorable to Appellant, could support a finding that the prison medical personnel were deliberately indifferent to Appellant’s condition.

Inmate’s Attorneys: Benjamin M. McGovern, Amanda O. Amendola

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