In Bullard, the court was faced with the question of whether the Fair Sentencing Act, which reduced mandatory sentencing disparities between defendants convicted of powder cocaine offenses and defendants convicted of crack cocaine offenses, applied retroactively to defendants sentenced before the FSA's enactment.  As every other circuit confronted with this issue has done, the court refused to apply the FSA's changes retroactively to the defendant.

However, in footnote 5, the court noted:

"We do not address the issue of whether the FSA could be found to apply to defendants whose offenses were committed before August 3, 2010, but who have not yet been sentenced, as that question is not presented here."

Many defense attorneys, federal prosecutors and district judges await the Fourth Circuit's guidance on this important issue for defendants pending sentencing.

The Commission's hearing agenda is here and Bill's proposed comments are here.

In an opinion filed yesterday, the Supreme Court held that upon the resentencing of a defendant in federal court, the sentencing court may--and should--take into account the defendant's post-sentence rehabilitation.  Prior to this ruling, there was confusion among federal courts as to the types of considerations that are relevant for a court to take into account on resentencing.  This opinion will not impact many offenders, but will serve to assist those defendants fortunate enough to have their sentences vacated and remanded on appeal, and who have made strides at self-betterment since their original sentence.  Of course, as is noted by the Court, a court on resentencing is not limited to only consider the positive post-sentencing conduct of the defendant, but also the negative.  The opinon is available here.

In an opinion filed yesterday (available here), the Fourth Circuit vacated and remanded a case for sentencing where a district court erroneously applied an aggravating leadership enhancement to a defendant in a drug conspiracy.

At the time of sentencing, the district court applied a three-level enhancement to the defendant's guidelines calculation because of his aggravating role as a manager or supervisor of other participants in the drug conspiracy.  (U.S.S.G. 3B1.1).  This enhancement is reserved for defendants who "control the activities of other participants" or exercise managerial responsibility. 

The district court applied the enhancement, to which the defendant did not object, on the basis of the following factors: the defendant sold powder and crack cocaine to other co-conspirators (who in turn sold it to others), the defendant was driven around by a co-conspirator during the course of the drug conspiracy, and some of the co-conspirators sold drugs "for" the defendant.  However, the Fourth Circuit held that there was insufficient evidence in the record that the defendant actually directly supervised anyone, or managed the operations.

The Court of Appeals remanded the case for re-sentencing, at which time the district court will have the opportunity to find facts that may increase the defendant's sentencing exposure under this enhancement, anyway.

In an opinion filed today (available here), the Court of Appeals held that a detective's statement to a suspect constituted an improper inducement.  The case was one of child sexual abuse, where a former youth pastor was the suspected abuser and the victim was a former member of the pastor's congregation. 

During an interrogation, a detective told the suspect that the victim "and his mother do not want to see you get into trouble, but they only want an apology."  Believing  the detective was hinting that if he wrote an apology note, the suspect would not be further prosecuted, the suspect wrote a (nonsensical) letter of apology to the victim.  Because the suspect in the case relied on the indirect inducement, the suspect's subsequent confession and letter of apology will be inadmissible in a new trial.

This case is important in that it reaffirms the place that Maryland's common law prohibition on improper inducements has in today's justice system.

Posted by Brennan Sullivan and McKenna

Previously, in State v. Ott, the Court of Appeals held that the good faith exception to the exclusionary rule did not apply when police officers relied on incorrect internal records of their own department.  In Ott, a Sheriff’s Department had kept inaccurate records on the status of warrants, and a police officer who relied on these records was prohibited from invoking the good faith exception to the exclusionary rule.  The Court stated that knowledge of the validity of a department’s internal records is imputed to officers of the police department, and that without exclusion, a department may have less of an incentive to keep accurate records (or to actually falsify records).

In this case, police officers pulled the defendant over after running his license plate number through their MVA records database, and finding that the tag was invalid.  In fact, the tag was not invalid (or so it seems from the sparse record alluded to on appeal).  The defendant argued that the stop was illegal because, under Ott, the police relied on inaccurate records and could not rely on the good faith exception to the exclusionary rule.  The state argued that Ott did not apply, and that two recent Supreme Court cases, Evans and Herring, were more on point.

The Court held that the good faith exception to the exclusionary rule should apply to a police department’s reliance on inaccurate MVA records, because police departments have no control over the accuracy of these records, and the MVA has no conceivable interest in maintaining inaccurate records.

Posted by Brennan Sullivan and McKenna

In an opinion published last week, Judge Niemeyer wrote a unanimous opinion holding that where a defendant has previously been convicted of second-degree assault in Maryland state court, by way of an Alford plea, that conviction may not be used as an ACCA predicate.

There are other posts about ACCA on this blog, but in summary – certain crimes do not, on their face, qualify as violent felonies, because there are non-violent ways to commit the crimes.  In Shepard and later cases, the Supreme Court has tailored the types of information courts can look to in determining whether a conviction qualifies as a “violent felony” so that it can be used as a predicated under the Armed Career Criminal Act.  Generally, “Shepard prevents sentencing courts from assessing whether a prior conviction counts as an ACCA predicate conviction by relying on facts neither inherent in the conviction nor admitted by the defendant.”

In Alston, the district court permitted the United States Attorney’s Office to prove that the defendant’s Alford plea satisfied the “violent felony” requirement by introducing the plea colloquy, during which the state court prosecutor laid out the evidence the state would have presented had the case proceeded to trial.  Importantly, because the plea was made pursuant to Alford, the defendant did not admit guilt, nor did the defendant admit any of the facts the prosecutor said they could prove.  The defendant simply admitted that the evidence the prosecutor claimed they would present, would be the evidence they presented – without any assertion as to whether the defendant agreed with the truth of such evidence.

The Fourth Circuit reversed the decision of the district court and held that in a case where the defendant entered an Alford plea to a crime that may or may not be a violent felony, this plea itself may not be used as a mechanism to qualify the crime as a predicate under the ACCA.

Posted by Brennan Sullivan and McKenna

The opinion is available here.

During the defendant-appellant's trial, the government called to the stand a number of cooperating witnesses who testified that the defendant was a crack dealer, and that he had sold them crack.  In addition to this testimony, there was evidence of a search warrant that had been executed at the defendant's house - where paraphernalia, but no drugs were recovered - and a grainy video allegedly depicting the defendant engaged in a drug transaction.

During his cross-examination of the government's cooperating witnesses, the defendant brought the witnesses' biases to the attention of the jury - the witnesses were receiving consideration for their testimony in the form of reduced sentences and monetary compensation.  However, at the close of trial, the judge did not read the special "informant instruction" to the jury.  This instruction highlights to a jury the need to carefully examine the testimony and credibility of informant witnesses, as these witnesses may have an incentive to tell a version of events that the government wants them to testify to - even if it is not the truth.

For some unknown reason, the defense attorney never requested that the judge instruct the jury in this manner -- even though the judge likely would have given such an instruction (probably without any objection from government, as such an instruction was clearly warranted).

In the end, the court held that the defendant's attorney was ineffective under Strickland, vacated his conviction and remanded his case for a new trial.

Posted by Brennan Sullivan and McKenna