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Opinions – 4th U.S. Circuit Court of Appeals: 8/22/11

Criminal Procedure

Sentencing

BOTTOM LINE: Where defendant’s sentence of 210 months imprisonment for cocaine-related offenses was imposed pursuant to a plea agreement rather than based on a Sentencing Guidelines range, defendant was not eligible for reduction of sentence based on Guideline amendments, which retroactively reduced base offense levels applicable to cocaine offenses.

CASE: United States v. Brown, No. 09-7561 (decided August 9, 2011) (Judges Wilkinson, SHEDD & Duncan). RecordFax No. 11-0809-60, 6 pages.

FACTS: On Jan. 21, 2005, James Brown pled guilty to maintaining a place at his residence for the purpose of manufacturing, distributing, and using cocaine base, also known as crack, in violation of 21 U.S.C. §856(a)(1). Brown entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). On June 9, 2005, after reviewing the applicable Sentencing Guidelines range, the district court sentenced Brown to a 210-month term of imprisonment in accordance with the terms of the plea agreement.

Brown subsequently moved for reduction of sentence based on a Guidelines amendment that retroactively reduced base offense levels applicable to crack cocaine offenses. The district court granted the motion, and the government appealed.

The 4th Circuit held that because Brown’s sentence had been imposed pursuant to the parties’ plea agreement rather than based on Sentencing Guidelines, Brown was not eligible for reduction of sentence. Accordingly, the district court’s decision was reversed.

LAW: A district court has the authority to reduce a previously imposed term of imprisonment in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission. 18 U.S.C. §3582(c)(2). Under Fed.R.Crim.P. 11(c)(1)(C), a plea agreement may stipulate that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply.). Such a recommendation or request binds the court once the court accepts the plea agreement. Id.

At issue in this case was whether a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is “based on” a sentencing range. In Freeman v. United States, the Supreme Court faced the same question. See Freeman v. United States, 564 U.S. —- (2011). A plurality of the Court concluded that a district court can always grant §3582(c)(2) relief to a defendant who enters into a Rule 11(c)(1)(C) plea agreement, but in contrast, a four-Justice dissent determined that a district court can never grant §3582(c)(2) relief to such defendants because their sentences are based, not on a sentencing range, but on their plea agreements. In a concurring opinion, Justice Sotomayor decided that district courts can sometimes grant §3582(c)(2) relief to a defendant who enters a Rule 11(c)(1)(C) plea agreement.

Justice Sotomayor agreed with the dissent that a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is based on the agreement and, therefore, §3582(c)(2) relief is usually not available. The fact that a judge may consult the Sentencing Guidelines when deciding whether to accept a Rule 1 1(c)(1)(C) plea agreement is irrelevant. While plea bargaining necessarily occurs in the shadow of the sentencing scheme to which the defendant would otherwise be subject, the term of imprisonment imposed by the district court is not “based on” those background negotiations but is instead based on the binding agreement produced by those negotiations. Freeman, slip op. at 5 (Sotomayor, J., concurring). Justice Sotomayor established a limited exception to this general rule, which applies only where the plea agreement itself expressly refers to and relies upon a Guidelines sentencing range.

Here, in applying Justice Sotomayor’s test, it was clear that the district court lacked the authority to grant Brown §3582 relief. Brown’s Rule 11(c)(1)(C) plea agreement did not expressly use a Guidelines sentencing range to establish his term of imprisonment. Rather, his plea agreement simply stated that “the appropriate sentence in this case is incarceration for not less than 180 months and not more than 240 months.” The fact that the district court consulted the Guidelines in establishing Brown’s specific sentence was irrelevant. See Freeman, slip op. at 5 (Sotomayor, J., concurring). Therefore, Brown’s plea agreement did not satisfy the limited exception recognized in Justice Sotomayor’s concurrence. Consequently, the plea agreement itself was the foundation for the term of imprisonment imposed, and the district court lacked the authority under §3582(c)(2) to grant Brown’s motion for a reduced sentence.

Accordingly, the district court’s order granting Brown’s motion for a reduced sentence was reversed.

Criminal Procedure

Sufficiency of evidence

BOTTOM LINE: Circumstantial evidence was insufficient to support jury verdict convicting defendant of interference with commerce through robbery and using and carrying firearm during and in relation to crime of violence, because there was no contemporaneous “identity” evidence linking defendant to robbery.

CASE: United States v. Bonner, No. 10-4768 (decided August 5, 2011) (Judges GREGORY, Wynn & Diaz). RecordFax No. 11-0805-60, 10 pages.

FACTS: The defendant, Calvin Bonner, was indicted by a federal grand jury on July 27, 2009. The indictment alleged interference with commerce by robbery in violation of 18 U.S.C. §1951(A)(2) and the use of a firearm during the crime in violation of 18 U.S.C. §924(c)(1)(A)(ii).

In Oct. of 2009, a jury found Bonner guilty of armed robbery. In June of 2010, after a renewed motion for a judgment of acquittal, the district court overturned his conviction based on insufficient evidence. The government appealed that ruling, arguing that, viewing the evidence in the light most favorable to the government, the jury could have found sufficient evidence to convict Bonner.

The 4th Circuit affirmed the district court’s ruling.

LAW: Federal Rule of Criminal Procedure 29 provides that at the close of the government’s evidence, the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. In this case, the evidence against Bonner was not sufficient for a reasonable trier of fact to conclude that he was guilty beyond a reasonable doubt because there was a conspicuous absence of any contemporaneous “identity” evidence linking the defendant to the robbery.

The government’s entire case consisted of four pieces of circumstantial evidence: (1) a Yankees hat with multiple DNA matches indicating that it was worn by Bonner was also worn by one of the robbers; (2) Bonner’s wallet, which was discovered in the alleged getaway car; (3) phone records showing calls from Bonner’s cell phone to his girlfriend the night after the robbery; and (4) a separate phone record showing a call made by Bonner from a nearby gas station to his girlfriend.

While it is possible to convict a defendant solely on circumstantial evidence, in cases where the identity of the perpetrator is in dispute, usually there is some specific “identity” evidence or uncontroverted physical evidence that links the defendant to the scene of the crime. See, e.g., United States v. Warren, 593 F.3d 540, 547 (7th Cir.2010). Here, however, only very flimsy facts tied Bonner to the robbery, and there was a notable lack of any physical description of the robbers from the victims other than the fact that the robbers were African-American.

As the gatekeepers of expert testimony, courts must be careful to avoid the potential pitfalls of “junk science.” A court must be particularly vigilant when, as in this case, the government asks it to rely on scientific evidence as the primary basis for upholding a conviction. Despite claims to the contrary, no credible physical evidence indicated that Bonner was wearing the Yankees hat on the night of the robbery, and any assumption that Bonner was the last wearer of the hat was therefore an impermissible inference by the jury.

For these reasons, the district court correctly concluded that no reasonable trier of fact could conclude that Bonner was guilty beyond a reasonable doubt. Accordingly, the district court’s conclusion that there was insufficient evidence to convict Bonner was affirmed.