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Opinions – 11/28/11: U.S. 4th Circuit Court of Appeals

Criminal Law

Possession of a firearm

BOTTOM LINE: Under its plain language, statute prohibiting possession of a firearm while “employed for” a convicted felon is not limited in application to only those hired for tangible compensation.

CASE: United States v. Weaver, No. 10-4885 (decided Oct. 24, 2011) (Judges Traxler, WILKINSON & Niemeyer). RecordFax No. 11-1024-61, 9 pages.

COUNSEL: Steven Loew, Office of the United States Attorney, Charleston, WV, for Appellant. Deirdre Purdy, Chloe, W.V, for Appellees.

FACTS: Defendants Richard Weaver, Elmer Moore, Kim Berryman, Steven Knight, Brian Mitchell, and Michael Phelps were alleged members of the Pagans Motorcycle Club (PMC), a gang located primarily along the East Coast of the United States.

The charges against them stemmed from orders they received from Floyd Moore, who was then the national vice president of the PMC. By virtue of his position in the PMC hierarchy, Moore was able to issue orders to lower-ranking PMC members.

Moore also was a convicted felon prohibited from possessing a firearm. In an apparent attempt to circumvent the firearm prohibition, Moore ordered PMC subordinates, including the defendants, to carry firearms in order to protect him. On at least one occasion, the defendants accompanied Moore while in possession of firearms.

Defendants were each charged with possessing firearms while being employed for a convicted felon in violation of 18 U.S.C. §922(h), and all but Weaver were also charged with conspiring to violate §922(h). The defendants filed motions to dismiss the charges, arguing in part that the words “employed for” and “employment,” as used in the statute, required the government to prove that they were employed for wages.

The district court held that employment in the context of §922(h) refers to an employer-employee relationship that is proven only by payment of wages or some other form of tangible compensation.

Meanwhile, defendants Weaver and Moore agreed to enter conditional guilty pleas, which reserved the right to appeal the district court’s ruling on the meaning of §922(h). At the plea hearing, the government conceded it could not prove that any of the defendants received tangible compensation. Consequently, the district court granted defendants’ motions to dismiss the §922(h) charges.

The United States appealed to the 4th Circuit, which reversed and remanded.

LAW: The question here was whether 18 U.S.C. §922(h), which prohibits a person from possessing a firearm while “employed for” a convicted felon, applies only to persons employed for tangible compensation.

The plain text of §922(h) does not contain a rigid requirement that defendants be hired for tangible compensation. Although the term “employ” can mean “to provide with a job that pays wages,” it is not limited to that narrow definition. By treating compensation as an essential condition of §922(h), the district court narrowed the intended scope of the statute, adding an element of proof not present in the plain language.

Had Congress wished to narrow the scope of §922(h), it could have used a monetary term, such as “hire,” “compensation,” or “wages,” as it has done elsewhere in Title 18. See, e.g., 18 U.S.C. §436. Instead, without any reference to pecuniary or monetary value, it prohibited individuals from possessing firearms while “employed for” a convicted felon. It would be improper to read into the statute additional language that Congress declined to include.

In addition to omitting any reference to compensation, Congress chose not to use the term “employee of,” which typically identifies a person hired for wages. Instead, it drew on the term “employed for,” which often means “used for” or “engaged in the service of.” For example, 18 U.S.C. §1231 distinguishes “employees” (workers hired for wages) from persons who are “employed for” a purpose. Congress’s decision to use the term “employed for” instead of “employee of” in §922(h) further undermined the district court’s holding that the statute requires proof of tangible compensation.

The district court’s interpretation of § 922(h) also overlooked the structure and purpose of the statute. Viewed in light of §922(g), which prohibits convicted felons from possessing firearms, the purpose of §922(h) is apparent: it aims to prevent the individuals listed in subsection (g) from circumventing the firearm prohibition by employing armed bodyguards. In adopting §922(h), Congress explicitly targeted the members of criminal organizations. See 114 Cong. Rec. 13869 (1968).

Finally, case law reinforces the proposition that law does not treat compensation as the sine qua non of an employer-employee relationship. Courts have defined the terms “employ” and “employee” via flexible, multi-factor tests that highlight elements of agency and control. See, e.g., Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).

Thus, the district court’s act of making compensation the indispensable ingredient of “employed for” cannot be squared with the statute’s language, structure, and purpose, or with prior judicial decisions.

Accordingly, the district court’s judgment was reversed and the case remanded.

Criminal Procedure


BOTTOM LINE: In setting defendant’s base offense level at sentencing for being a felon in possession of a firearm, district court improperly relied on an unincorporated statement of probable cause to conclude that defendant’s prior state-court conviction for second-degree assault qualified as a crime of violence.

CASE: United States v. Donnell, No. 09-4851, (filed Oct. 27, 2011) (Judges DAVIS, King & Keenan). RecordFax No. 11-1027-61, 12 pages.

COUNSEL: Paresh Patel, Office of the Federal Public Defender, Greenbelt, Md., for Appellant. Jonathan Su, Office of the United States Attorney, Greenbelt, Md., for Appellee.

FACTS: Robert Donnell pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §922(g)(1). The only disputed issue at sentencing was whether Donnell had one or two prior convictions for a crime of violence under U.S.S.G. §2K2.1, which the parties agreed governed Donnell’s conduct. Specifically, the parties disputed whether Donnell’s previous conviction for second-degree assault, to which Donnell pled guilty in a Maryland district court, constituted a predicate conviction for a crime of violence.

The statement of charges for second-degree assault alleged that on or about May 25, 2003, Donnell assaulted his spouse in the second degree in violation of Md.Code Ann., Crim. Law 3–203. The statement of probable cause provided a detailed description of the underlying facts, from which the district court concluded that the prior second-degree assault conviction was a crime of violence. The separately paginated documents were dated the same day and filed in the same court. On the statement of charges, the judicial officer had checked off “yes” (rather than “no”) next to “probable cause,” indicating that there was probable cause.

The district court consulted the statement of probable cause to determine whether the second degree assault was a qualifying crime of violence and consequently assigned a Guidelines base offense level of 24, for possession of a firearm after two felony convictions. After a two-level increase for obstruction of justice for fleeing from an officer and a three-level decrease for acceptance of responsibility, the district court concluded that Donnell’s final offense level was 23. With a criminal history category of IV, Donnell’s advisory Guidelines range was 70 to 87 months. The court sentenced Donnell to 78 months’ imprisonment.

Donnell appealed to the 4th Circuit, which vacated the sentence and remanded the case.

LAW: The issue presented on appeal was whether the district court erred in considering information in an unincorporated statement of probable cause to conclude that Donnell’s Maryland second-degree assault conviction was a crime of violence.

Sentencing for a felon in possession charge is governed by U.S.S.G. §2K2.1, which sets a base offense level of 24 if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of a crime of violence, and a base level of 20 if the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of a crime of violence.

A crime of violence for purposes of §2K2.1 is defined to include any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. §4B1.2(a).

A sentencing court must normally use a categorical approach to determine whether an earlier conviction qualifies as a crime of violence, relying only on the fact of conviction and the elements of the offense. James v. United States, 550 U.S. 192, 202 (2007).

In a limited class of cases, however, where the definition of the prior offense includes violent and nonviolent conduct, a sentencing court may use a modified categorical approach to look beyond the fact of conviction and elements of the offense to determine which category of behavior underlies the prior conviction. See Johnson v. United States, ––– U.S. –––– (2010).

To identify which category of behavior underlies a prior conviction stemming from a guilty plea, a court may look to “the statement of factual basis for the charge shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea.” Shepard v. United States, 544 U.S. 13, 20 (2005). This material allows a later court to determine whether the plea “necessarily” rested on the fact identifying” the crime as a violent offense. Id. at 21.

Thus, a sentencing court determining whether the plea necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information. Id. at 26.

The purpose of restricting this inquiry to a specified set of conclusive records is twofold: (1) to avoid collateral trials; and (2) to avoid a “wider inquiry” that potentially violates the Sixth Amendment right to trial by jury. United States v. Alston, 611 F.3d 219, 225 (4th Cir.2010).

Because second degree assault under Maryland law encompasses several distinct crimes, some of which qualify as violent felonies and others of which do not, sentencing courts are entitled to use the modified categorical approach to determine whether a prior conviction for Maryland second degree assault is a crime of violence. Alston, 611 F.3d at 222–23. Under this approach, the district court may look to the charging document in determining whether a conviction is a crime of violence. Shepard, 544 U.S. at 20–21.

Here, to prove that the category of conduct underlying Donnell’s second degree assault conviction involved the “use of force” and thus was a crime of violence, the Government introduced two documents: (1) the statement of charges, a barebones document laying out the charge and containing a judicial officer’s check mark indicating that there was probable cause; and (2) the separately paginated statement of probable cause, which included the sworn statement of the arresting officer containing details of the assault. To appropriately consider information in an external document, such as the statement of probable cause at issue here, the document containing the information must be expressly incorporated into the charging document. Shepard, 544 U.S. at 20; see also United States v. Simms, 441 F.3d 313, 316–17 (4th Cir.2006).

In Shepard, the Supreme Court held that complaint applications and police reports may not be considered to determine whether a defendant’s earlier guilty plea necessarily admitted, and supported a conviction for a violent felony. Shepard, 544 U.S. at 16. Rather, evidence used to determine whether a prior guilty plea supported a conviction for a violent felony must be confined to records of the convicting court approaching the certainty of the record of conviction. Id. at 23. The police reports and complaint applications at issue in Shepard were similar to the statement of probable cause at issue here: both were used to make an assessment of probable cause and depart from the certainty of the record of conviction.

By contrast, in Simms, a district court’s use of a Maryland application for a statement of charges to determine that a battery conviction was a violent felony was appropriate because the application was expressly incorporated into the charging document. Simms, 441 F.3d at 316–17. The charging document charged,“Upon the facts contained in the [application for the statement of charges]” the defendant committed battery. This incorporation language allowed the district court to refer to the facts in the application without violating Shepard. Id. at 317–18.

However, where, unlike in Simms, there is no express incorporation of the information contained in the statement of probable cause, the district court lacks assurance that the defendant necessarily admitted to the facts on which it would be basing a sentencing enhancement. Cf. Parrilla v. Gonzales, 414 F.3d 1038, 1043 (9th Cir.2005).

Here, it was uncontested that the district court relied upon an officer’s sworn statements contained in a statement of probable cause that was not expressly incorporated into the statement of charges to determine that Donnell’s Maryland second degree assault conviction constituted a predicate offense under U.S.S.G. §2K2.1(a)(2). Therefore, the district court therefore erred in relying on facts contained in the unincorporated affidavit to find that Donnell had two qualifying convictions.

Accordingly, the district court judgment was vacated, and the case remanded for resentencing proceedings.

COMMENTARY: A judicial officer’s mere check-mark on the statement of charges acknowledging that there is probable cause is insufficient to allow consideration of the facts contained in the statement of probable cause, especially where, as here, the documents are separately paginated. An assessment of probable cause does not conclusively establish that the defendant admitted those facts in pleading guilty. And, contrary to the Government’s contentions, neither of the two pre-Shepard, pre-Simms cases on which it relied, Kirksey and Coleman, compels a different result; in each of those cases the external document was expressly incorporated into the charging document. United States v. Kirksey, 138 F.3d 120 (4th Cir.1998); United States v. Coleman, 158 F.3d 199 (4th Cir.1998).

PRACTICE TIPS: Maryland Rule of Criminal Procedure Rule 4–102(a) defines “charging document” as a written accusation alleging that a defendant has committed an offense, and specifically includes a “statement of charges” as a charging document. The rules provide that the charging document must contain the name of the defendant, a concise and definite statement of the essential facts of the offense with which the defendant is charged and, with reasonable particularity, the time and place the offense occurred.

Immigration Law


BOTTOM LINE: Immigration judge was justified in denying aliens’ request for cancellation of removal where substantial evidence showed that they knowingly engaged in illegal smuggling of their children into the United States in violation of immigration laws, and hence lacked the requisite good moral character to be eligible for cancellation of removal.

CASE: Ramos v. Holder, No. 08-1271 (decided Oct. 27, 2011) (Judges WILKINSON, Wynn & Floyd). RecordFax No. 11-1021-60, 11 pages.

COUNSEL: Aaron Caruso, Abod & Caruso, LLC, Rockville, Md., for Petitioners. Kathryn DeAngelis, United States Department of Justice, Washington, for Respondent.

FACTS: Ricardo Ramos entered the United States illegally from Guatemala in 1989. His wife, Berta, and their four children followed individually. Following each child’s arrival in the United States, Ricardo and Berta sent several thousand dollars to the child at a hotel in Mexico, who arrived illegally in the United States promptly thereafter.

The Immigration Judge (IJ) and Board of Immigration Appeals (BIA) both determined that Ricardo’s and Berta’s monetary assistance amounted to “alien smuggling” pursuant to section 212(a)(6)(E) of the Immigration and Nationality Act (INA), and that they thus lacked the “good moral character” necessary for cancellation of their removal from the United States. Ricardo and Berta, who were natives and citizens of Guatemala, petitioned for review of the BIA order affirming the IJ’s denial of their request for cancellation of removal.

The 4th Circuit held that substantial evidence supported IJ’s determination that the Ramoses failed to establish the good moral character necessary for cancellation of removal, and denied the petition for review.

LAW: As a national of Guatemala who first entered the United States before Oct. 1, 1990, Ricardo was eligible to apply for cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA). See 8 U.S.C. §1240.60–61. In order to obtain relief, Ricardo was required to demonstrate, among other things, that he had been continually present in the United States for at least seven years before his application date, and that he had been a person of “good moral character” during that seven-year period. See 8 C.F.R. §1240.66(b).

Under the INA’s general definition provision, a person is per se ineligible to be “regarded as, or found to be, a person of good moral character” if that person is an alien “smuggler” as described in §212(a)(6)(E) of the INA. 8 U.S.C. §1182(a)(6)(E); 8 U.S.C. §1101(f)(3).

Section 212(a)(6)(E) of the INA, titled “Smugglers,” applies to any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.” 8 U.S.C. §1182(a)(6)(E). The burden of proof is on the applicant for NACARA cancellation to establish his qualification, including good moral character, by a preponderance of the evidence. See 8 C.F.R. §240.64(a).

The determination that an alien is per se ineligible to establish the good moral character necessary for cancellation of removal is essentially a legal determination involving the application of law to factual findings. Jean v. Gonzales, 435 F.3d 475, 482 (4th Cir.2006).

In this case, contrary to the Ramoses’ contentions, the IJ used the proper standard for evaluating the applicability of section 212(a)(6)(E) and substantial evidence supported the finding that Ricardo’s and Berta’s actions met this standard.

Specifically, the IJ determined, based on Ricardo’s and Berta’s testimony, that Ricardo and Berta sent money jointly to enable their children to come in through the U.S.-Mexican border. According to the IJ, the testimony established that Ricardo and Berta were both aware that their children had no documentation that would enable them to cross into the United States legally, that Ricardo had knowledge that his children could, or actually would, engage the assistance of smugglers, and that Berta knew that absent assistance from smugglers, her children would not have been able to enter the U.S.

The IJ thus had substantial reason to find that the money from Ricardo and Berta provided indispensible financial assistance for the illegal crossings. And, with respect to knowledge, there was ample evidence to conclude that Ricardo and Berta aided their children “knowingly” based on the pattern of assistance. Thus, the agency was fully justified in finding alien smuggling.

In sum, the burden of proof was on Ricardo and Berta, as illegal aliens, to demonstrate their qualification for cancellation of removal, including their good moral character. Instead, an obvious pattern of financial aid resulting in the children’s arrival in the United States strongly suggested that Ricardo and Berta knowingly assisted illegal entry. This determination was only strengthened by Ricardo’s and Berta’s own testimony admitting intent to help their children cross the border in violation of the law.

Accordingly, the petition for review was denied.