Four Big Recent Cases from
the Fourth Circuit and the
Supreme Court
United States v. Miller, 2013 WL 4441547, 2013 U.S. App.
LEXIS 17494 (4th Cir.)
United States v. Davis, 720 F.3d 215 (4th Cir. 2013)
United States v. Alleyne, 133 S.Ct. 2151 (2013)
United States v. Deschamps, 133 S.Ct. 2276 (2013)
Over-rated, Under-rated, or
Properly Rated?
United States v. Miller
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Facts:
Defendant was convicted in 2008 of being a felon-inpossession of a firearm.
Under the relevant precedent at the time (Harp), his
prior North Carolina convictions were federal felonies.
Subsequent to his conviction, Simmons over-ruled
Harp, and Mr. Miller had no predicate felonies.
He filed a § 2255 claim, alleging actual innocence.
The question before the Court was whether Simmons
was applicable to provide habeas relief.
United States v. Miller
Holding:
• Simmons is a substantive, not procedural, rule.
• It is, therefore, applicable to cases on
collateral review.
• Because there was no dispute that, under
Simmons, Mr. Miller was actually innocent of
being a felon-in-possession of a firearm, the
Court ordered that his 2008 conviction be
vacated.
United States v. Miller
•Over-rated?
•Under-rated?
•Properly Rated?
United States v. Miller
Over-rated
United States v. Miller
Miller is a great case for Mr. Miller and for
people like him, but it is not the panacea that
many lawyers and many former clients think
that it is. It will not open the jailhouse door for
most former clients.
United States v. Miller
• Many procedural hurdles remain for most former defendants
hoping to file Simmons-based § 2255 petitions:
• Timeliness: The United States, to its credit, waived the statute of
limitations in Miller. It may not do so in future cases. Nothing in
Miller implies that the statute of limitations will not apply to
Simmons petitions.
• Appeal Waiver: The government chose not to enforce, or Mr. Miller
did not sign, an appeal waiver. Especially for cases involving a
Guidelines determination (i.e. Career Offender), the appeal waiver
provides a significant hurdle to obtaining § 2255 relief based on
Simmons.
• Bad Facts: Mr. Miller did not have other predicate convictions that
would have allowed the government to prove that he was a felon
anyway.
United States v. Davis
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Facts:
Defendant committed numerous state robberies in 2004 and 2005.
In 2005, he pleaded guilty in NC state court to six counts of robbery
with a dangerous weapon.
Consistent with his plea agreement, the charges were
“consolidated” for judgment as one robbery and sentenced as a
Class D felony.
In 2010, he robbed a fast-food resturant and pleaded guilty to
Hobbs Act robbery.
He was sentenced as a Career Offender based on having two prior
state robbery offenses.
He appealed, arguing that his consolidated judgment was only one
prior conviction.
United States v. Davis
Holding:
• In North Carolina a “Consolidated Sentence” is
not merely a matter of procedural efficiency.
It has real, substantive, effect.
• “[W]here a defendant receives a ‘consolidated
sentence’ (or ‘consolidated judgment’) under
North Carolina law, it is one sentence.”
• So, Mr. Davis was not a Career Offender.
United States v. Davis
•Over-rated?
•Under-rated?
•Properly Rated?
United States v. Davis
Properly Rated
(though it could end up under-rated)
United States v. Davis
There’s Some Good Stuff Here:
• If you look at Mr. Davis’s past, he certainly meets the common
sense test of someone who has spent a career offending. He has a
history of robbing people and businesses with guns. But, under the
law, he is not a career offender
• The Fourth Circuit did not credit the government’s arguments that
Mr. Davis’s crimes should have been punished more severely, or
that it was not fair to let him not be a Career Offender when others
in his position (without a consolidated sentence) would be.
• You will have clients with pretty bad pasts who will benefit from this
case.
United States v. Davis
There’s Some Not-As-Good Stuff Here:
• Nothing in this opinion prevents sentencing
courts from upwardly departing or varying based
on the defendant’s criminal history or the
argument that he “should be” a career offender.
In fact, the Fourth expressly notes those options
at the end of the opinion.
• This is a Guidelines-based case, so it does not
help ACCA-exposed clients.
Alleyne v. United States
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Facts:
Defendant was convicted by a jury of, among other things, using or
carrying a firearm in relation to a crime of violence.
At sentencing, he objected to the application of a seven-year
mandatory minimum sentence for “brandishing” the firearm,
arguing that the jury found only that he used it—which carries only
a five-year minimum sentence.
The district court, bound by Harris v. United States, held that it
could find brandishing by a preponderance at sentencing, and
applied the seven year mandatory minimum sentence.
Mr. Alleyne appealed, arguing that allowing a judge to increase a
mandatory minimum at sentence violates the Sixth Amendment
and, therefore, that Harris should be overruled.
Alleyne v. United States
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Holding:
Harris is expressly overruled.
A district court cannot impose a mandatory
minimum sentence based on facts found at
sentencing.
Any fact that increases a defendant’s mandatory
minimum sentence must be admitted by the
defendant or found by a jury beyond a
reasonable doubt.
So, the five year, not the seven year, mandatory
minimum should have applied.
Alleyne v. United States
•Over-rated?
•Under-rated?
•Properly Rated?
Alleyne v. United States
Properly Rated
Alleyne v. United States
There’s Some Good Stuff Here:
• Harris was a worrying case. It stood as an outlier that called the
other Sixth Amendment cases into some question. It is nice to have
the Court on the right page concerning it.
• Mandatory minimum sentences are probably the single biggest
problem our clients have at sentencing. Anything that places
constitutional limits on them is a very good thing.
• And, hey, there will certainly be cases where the government will
not be able to prove brandishing to a jury, but it might have been
able to convince a district judge by a preponderance. The Sixth
Amendment protects those clients.
Alleyne v. United States
There are some limits, though:
• The maximum penalty for 924(c) is life, regardless of
whether brandishing is found. Nothing (other than
reasonableness review) prevents a judge from upwardly
varying or departing to a sentence above five years based
on a finding that your client brandished the firearm.
• The government can always include brandishing in the
indictment and/or any offered plea agreement. The Sixth
Amendment allows the imposition of mandatory minimum
sentences if they are found by a jury or admitted by a
defendant.
Descamps v. United States
Facts:
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Defendant convicted of Felon in Possession
Had a California conviction for “burglary.”
However, California offense did not require
element of unlawful entry which is one of the
elements of “generic” burglary.
9th Circuit held that sentencing court could look to
Shepard documents to see if D’s conviction
“necessarily” included a finding of unlawful entry.
If so, the conviction could be used as an ACCA
predicate under the “modified categorical”
approach.
Descamps v. United States
Holding:
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9th Circuit got it wrong!
Modified categorical approach only applies to
divisible statutes.
That is, statutes that contain alternative elements.
California burglary never requires proof of
unlawful entry so it never qualifies as “generic”
burglary.
The fact that a particular defendant might have
“broken and entered” in committing the offense is
irrelevant.
What matters are the elements of the offense, not
the manner in which it was committed on a
particular occasion.
Descamps v. United States
•Over-rated?
•Under-rated?
•Properly Rated?
Descamps v. United States
Under-Rated
Descamps v. United States
Significance:
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Finally clears up confusion about proper
application of modified categorical approach.
Reinforces that focus is on the elements, not
the facts of the crime.
Already has caused courts to revisit earlier
decisions.
Cabrera-Umanzor- child abuse
Royal- Maryland assault
Carthorne- assault and battery of police
officer