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Law Digest — 4th U.S. Circuit Court of Appeals — Jan. 24, 2019


4th U.S. Circuit Court of Appeals

Criminal Procedure, Sentencing: Defendant’s sentence vacated and remanded for resentencing because district court failed to consider defendant’s arguments for a lower sentence. United States of America v. Carl Javan Ross, No. 17-4242.

Evidence, Relevance: Judgement of the district court, which excluded as irrelevant defendant’s performance audit, affirmed, where information in the audit would not have addressed the pertinent issue in the case and had already been elicited from witness testimony. United States Ex Rel., Jon H. Oberg, v. Pennsylvania Higher Education Assistance Agency, et al., No. 18-1028.

Immigration Law, Convention Against Torture: Where alien applied for withholding of removal and sought protection under the United Nations Convention Against Torture on the grounds that deportation to his native El Salvador would result in his being harmed by gang members on the basis of his father’s disability, denial of application was proper because alien failed to establish a nexus between his father’s disability and the harm he would allegedly suffer. Jose Marcial Cortez-Mendez v. Matthew g. Whitaker, No. 16-2389.


Criminal Procedure


BOTTOM LINE: Defendant’s sentence vacated and remanded for resentencing because district court failed to consider defendant’s arguments for a lower sentence.

CASE: United States of America v. Carl Javan Ross, No. 17-4242 (decided Jan. 14, 2019) (Judges GREGORY, Niemeyer & Harris).

COUNSEL: Paresh S. Patel, Office of the Federal Public Defender, Greenbelt, MD, for Appellant. Paul E. Budlow, Office of the United States Attorney, Baltimore, MD, for Appellee.

FACTS: On December 7, 2016, a jury convicted Paresh Ross of two counts of receipt of child pornography, in violation of 18 U.S.C. §2252(a)(2), and one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(b). The United States Probation Office filed a Presentence Investigation Report (“PSR”) that included a recommended term of confinement and recommended special conditions of supervised released. The PSR calculated Ross’s final offense level as 35 and included various enhancements reflecting the repugnant nature of the materials in his possession. The PSR calculated Ross’s Criminal History Category as II given that he had a prior state court conviction for a sexual offense involving a minor.

The Government and Ross both submitted sentencing memoranda. The district court held a sentencing hearing and adopted the PSR’s advisory Guidelines range: 188 months to 235 months in prison. The district court ordered a term of confinement of 120 months as to each count, to run concurrently with each other but consecutive to his state court sentence. The district court placed Ross on supervised release for the rest of his life “subject to the special conditions set forth in the recommended conditions of supervision.”

Ross appealed to the 4th Circuit, which vacated the sentence and remanded for resentencing.

LAW: Under the standard set forth in Gall v. United States, a sentence is reviewed for both procedural and substantive reasonableness. 552 U.S. 38, 51 (2007). In the instant case, procedural reasonableness was at issue. In determining procedural reasonableness, the Court considers whether the district court properly calculated the defendant’s advisory guidelines range, gave the parties an opportunity to argue for an appropriate sentence, considered the 18 U.S.C. §3553(a) factors, and sufficiently explained the selected sentence. Id. at 49-51. The Court does not require the district court to “robotically tick through §3553(a)’s every subsection, particularly when imposing a within-Guidelines sentence.” United States v. Powell, 650 F.3d 388, 395 (4th Cir. 2011). Nevertheless, the district court must provide some individualized assessment “justifying the sentence imposed and rejection of arguments for a higher or lower sentence based on §3553.” United States v. Lynn, 592 F.3d 572, 584 (4th Cir. 2010).

The first issue was the procedural unreasonableness of Ross’s term of confinement and deficiencies pertaining to Ross’s special conditions of supervised release. A district court must address or consider all non-frivolous reasons presented for imposing a different sentence and explain why he has rejected those arguments. United States v. Blue, 877 F.3d 513, 518 (4th Cir. 2017). Here, the district court did not follow circuit precedent during Ross’s sentencing proceedings when determining his term of confinement. Indeed, the district court did not address or consider any of the numerous non-frivolous arguments advanced by Ross’s counsel requesting a lower and concurrent sentence.

The 4th Circuit has previously held that “[t]he adequacy of the sentencing court’s explanation depends on the complexity of each case. There is no mechanical approach to our sentencing review. The appropriateness of brevity or length, consciousness or detail, when to write, what to say, depends upon the circumstances.” Blue, 877 F.3d at 518. Here, it was undisputable that the sentencing court provided an insufficient explanation of its sentence and did not provide an “individualized assessment” of important mitigation evidence. Id. An individualized assessment requires “that district courts consider the defendant’s nonfrivolous arguments for a downward departure, impose an individualized sentence based on the characteristics of the defendant and the facts of the case, and explain the sentence chosen.” Id.

The district court’s post-sentencing commentary was non-responsive to Ross’s arguments and violated the legal standards for procedural reasonableness. Although it was held that it is sometimes possible to discern a sentencing court’s rationale from the context surrounding its decision, United States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir. 2006), an appellate court nonetheless “may not guess at the district court’s rationale, searching the record for statements by the Government or defense counsel or for any other clues that might explain a sentence,” United States v. Carter, 564 F.3d 325, 329-30 (4th Cir. 2009). The comments made by the district court required the Court to impermissibly speculate as to the reason for the district court’s sentencing decision.

Given that the district court failed to address Ross’s non-frivolous mitigation arguments and to properly explain its rationale for his term of confinement and his special conditions, the Court vacated his sentence and remanded so that the district court may provide a sufficient explanation for the significant deprivation of liberty Ross faces as a result of his criminal conduct.



BOTTOM LINE: Judgement of the district court, which excluded as irrelevant defendant’s performance audit, affirmed, where information in the audit would not have addressed the pertinent issue in the case and had already been elicited from witness testimony.

CASE: United States Ex Rel., Jon H. Oberg, v. Pennsylvania Higher Education Assistance Agency, et al., No. 18-1028 (decided Jan. 8, 2019) (Judges MOTZ, Keenan & Harris).

COUNSEL: Eric Kenneth Bachman, Zuckerman Law, Chevy Chase, MD, for Appellant. George W. Hicks, Jr., Kirkland & Ellis LLP, Washington, for Appellee.

FACTS: Dr. Jon Oberg, as relator for the United States, brought this qui tam action against four student loan corporations, including the Pennsylvania Higher Education Assistance Agency (“PHEAA”), alleging that the corporations had defrauded the Department of Education and so violated the False Claims Act (“FCA”), 31 U.S.C. §3729 et seq.

Oberg’s claim concerned a Department of Education subsidy program meant to encourage the issuance of low-interest federal student loans. It did so by offering Special Allowance Payments (“SAPs”) to certain qualifying lenders. 20 U.S.C. §1087-1. For one particular category of loans — those financed through tax-exempt bonds — Congress guaranteed lenders a 9.5 percent return. Id. §1087-1(b)(2)(B). In the low-interest environment of the mid-2000s, this guaranteed rate made tax-exempt bonds a particularly attractive investment vehicle.

To take advantage of the favorable return offered by the program, Oberg claimed that between 2002 and 2006, PHEAA submitted false claims for SAP subsidies by improperly transferring student loans from non-tax-exempt bonds into tax-exempt bonds. In doing so, PHEAA converted lower-interest floating-rate loans into loans that guaranteed a 9.5 percent return. This translated into millions of dollars in additional revenue for PHEAA.

During a five-day trial, the court admitted more than 100 exhibits and the jury heard testimony from more than a dozen witnesses. After deliberating for less than three hours, the jury returned a unanimous verdict in favor of PHEAA.

Oberg appealed to the 4th Circuit, which affirmed.

LAW: Oberg contended that the district court erred by excluding certain evidence at trial. Oberg sought admission of a 2004–2007 Performance Audit of PHEAA performed by the Pennsylvania Auditor General. The Audit “evaluate[d] PHEAA’s performance in improving access to higher education for Pennsylvania residents” and concluded that PHEAA had largely “failed its mission.” The Audit found that PHEAA paid excessive salaries and bonuses to its executives and managers. The Audit also catalogued and strongly criticized PHEAA’s lavish spending on employee benefits and “extravagant” expenditures on other unnecessary expenses. It “concluded that PHEAA was governed and managed within a culture that sometimes allowed self-reward to supersede fiscal prudence.” The district court excluded the Audit as irrelevant under Federal Rule of Evidence 401.

Oberg contended that the Audit was relevant for several reasons. First, he argued that the Audit’s critical findings tended to establish scienter — i.e., that desire for personal gain motivated PHEAA officers to submit false claims. This argument failed because unlike the securities fraud cases on which Oberg relied, FCA claims require a relator to show only that the defendant had knowledge of the illegality of its actions, rather than specific intent to defraud. See, e.g., United States ex rel. Harrison v. Westinghouse Savannah River Co., 352 F.3d 908, 921 (4th Cir. 2003) (“In establishing liability under the FCA, a plaintiff need not prove the defendant had a financial motive to make a false statement relating to a claim seeking government funds.”); United States ex rel. K & R Ltd. P’ship v. Mass. Hous. Fin. Agency, 530 F.3d 980, 984 (D.C. Cir. 2008) (finding evidence of defendant’s “motive to submit false claims — the need to bail itself out of financial trouble — could not . . . support a finding of knowledge, be it actual, deliberate ignorance, or reckless disregard”).

As the district court correctly explained: “It doesn’t really make any difference whether they were operating well or not well or whatever. The only issue in this case is: Did they commit fraud and file a false claim?”

Oberg maintained that the Audit would have allowed him to rebut PHEAA’s own improper argument that its management acted with the “benevolent motive” to benefit borrowers in carrying out its scheme. Oberg lodged little objection to this evidence at trial. Indeed, Oberg himself elicited most of the “benevolent motive” testimony through his questions to PHEAA’s management. In any event, whether PHEAA’s management had benevolent motive was a collateral issue of limited relevance, making any error harmless. See Smith v. Balt. City Police Dep’t, 840 F.3d 193, 200–01 (4th Cir. 2016).

Finally, Oberg contended that the Audit would have helped him attack the credibility of PHEAA’s executives. He argued that because witness credibility is “always at issue,” any “evidence concerning a witness’s credibility is always relevant.” United States v. Green, 617 F.3d 233, 251 (3d Cir. 2010). This argument also failed, for Oberg questioned PHEAA’s executives on the company’s compensation practices and elicited much of the same information contained in the Audit. Moreover, because nothing in the Audit contradicted the trial testimony of PHEAA executives, its admission would hardly have aided Oberg in impeaching the executives’ credibility.

In sum, the district court did not abuse its discretion in excluding the Audit as irrelevant. Accordingly the judgment of the district court was affirmed.

Immigration Law

Convention Against Torture

BOTTOM LINE: Where alien applied for withholding of removal and sought protection under the United Nations Convention Against Torture on the grounds that deportation to his native El Salvador would result in his being harmed by gang members on the basis of his father’s disability, denial of application was proper because alien failed to establish a nexus between his father’s disability and the harm he would allegedly suffer.

CASE: Jose Marcial Cortez-Mendez v. Matthew G. Whitaker, No. 16-2389 (decided Jan. 7, 2019) (Judges Wilkinson, AGEE & Jones (sitting by designation)).

COUNSEL: Melissa Jill Mitchell, Law Offices of Paul A. Suhr, PLLC, Raleigh, NC, for Cortez-Mendez. Robert Michael Stalzer, United States Department of Justice, Washington, for Respondent.

FACTS: Jose Marcial Cortez-Mendez was born in El Salvador. His father, Marcial Cortez, is deaf and mute. People in El Salvador with these physical impairments have suffered routine ridicule and discrimination, despite the existence of anti-discrimination laws. Because of his disabilities, Marcial Cortez could not provide for his family and they moved in with Cortez-Mendez’s aunt. Cortez-Mendez’s mother also abandoned the family when he was seven because of the family’s difficulties.

As a teenager, MS-13 and MS-18 gang members began targeting Cortez-Mendez for gang recruitment. They harassed him and threatened him with death, that if he did not become a gangster, they were going to kill him. Despite this harassment, the gangs never physically harmed Cortez-Mendez or anyone in his family. To this day, his father, mother, sisters, and aunt live in El Salvador unharmed.

Cortez-Mendez illegally entered the United States in 2003. The Department of Homeland Security served him with a Notice to Appear, but he failed to appear at his hearing and was ordered removed to El Salvador in abstentia. Nevertheless, Cortez-Mendez settled in North Carolina with his uncle, girlfriend, and two children. In 2005, gang members called Cortez-Mendez’s mother in El Salvador, demanded money, and demanded Cortez-Mendez’s whereabouts. Through his aunt, Cortez-Mendez learned the gangs told his mother they remembered him as a son of a mute and dumb person and threatened to kill him if he returned to El Salvador.

In 2015, Cortez-Mendez applied for withholding of removal and CAT protection. As grounds for protection under the INA, he cited his membership in a particular social group: “members of the family of Marcial-Cortez who is a disabled person.” In 2016, the IJ denied Cortez-Mendez’s application for withholding of removal and CAT protection. The IJ found Cortez-Mendez’s testimony was credible but held his proposed particular social group did not satisfy the INA’s requirements. The IJ also held that Cortez-Mendez failed to demonstrate a sufficient nexus—that is, he did not show that the “indeterminate and generalized” threats he had received in El Salvador were on account of his membership in that group.

Cortez-Mendez appealed to the BIA, which affirmed the IJ’s conclusion that “any threats Cortez-Mendez received or future harm he fears are the result of general criminal gang activity,” not membership in his disabled father’s family. The BIA also affirmed the IJ’s refusal to accept Cortez-Mendez’s “speculation that his lower economic status and his father’s disability made him more susceptible to gang recruitment” because the record fairly supports the conclusion that the “harm he fears upon return is as a result of his rejection of gang membership rather than his father’s disability.” The BIA thus dismissed Cortez-Mendez’s appeal, and CortezMendez was again ordered removed.

Cortez-Mendez appealed to the 4th Circuit, which denied his petition for review.

LAW: To receive withholding of removal relief, Cortez-Mendez needed to show that, if removed to El Salvador, “there is a clear probability that [his] ‘life or freedom would be threatened…because of’” a protected ground—here, his alleged membership in a particular social group. Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010) (quoting 8 U.S.C. §1231(b)(3)(A)). This standard requires two showings: First, Cortez-Mendez needed to show “it is more likely than not” that his life or freedom will be threatened if he returns to El Salvador. Lizama v. Holder, 629 F.3d 440, 446 (4th Cir. 2011). Evidence that he suffered past persecution can help to satisfy this first showing. See 8 C.F.R. §1208.16(b)(1). Second, Cortez-Mendez had to show that the “probability of persecution” was “link[ed]” to his status in the particular social group, that is, that the two share a nexus. Singh v. Holder, 699 F.3d 321, 327 (4th Cir. 2012). If he satisfied his burden of proof, withholding of removal is mandatory. Gomis v. Holder, 571 F.3d 353, 359 (4th Cir. 2009).

The nexus issue was dispositive of this appeal, so the only issue was whether Cortez-Mendez was a member of a particular social group and whether he suffered past persecution. See 8 U.S.C. §1101(a)(42); 8 C.F.R. §1208.16(b)(1). The only consideration, therefore, was whether Cortez- Mendez established the requisite nexus between any persecution he suffered and his relation to his disabled father.

Whether a person’s persecution shares a nexus with his alleged protected ground is a question of fact entitled to deference and reviewed for clear error. See Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011). To establish this nexus, Cortez-Mendez was required to demonstrate that his membership in his disabled father’s family was “at least one central reason for” the persecution he experienced or that he fears in El Salvador. 8 U.S.C. §1158(b)(1)(B)(i). His relation to his father could not be “incidental, tangential, superficial, or subordinate to another reason for harm.” Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009). Review of the BIA’s and IJ’s determination of this factual question was “limited to considering whether their conclusion is ‘supported by reasonable, substantial, and probative evidence.’” Cruz v. Sessions, 853 F.3d 122, 128 (4th Cir. 2017).

Cortez-Mendez presented no direct or circumstantial evidence that the gangs harassed him “on account of” his father’s disabilities as opposed to his own rejection of gang membership. See 8 U.S.C. §1101(a)(42). He provided no direct evidence that the gangs intimidated him because he was his father’s son. His only evidence of linkage to his father is that non-gang neighborhood harassers had “made fun of” him because of Marcial Cortez’s disabilities, and the gang members who called his mother in 2005 “remembered him as a son of a mute and dumb person.” Even if either of these groups of taunters knew about Marcial-Cortez’s disabilities, it does not follow that they intimidated Cortez-Mendez because of his relation to his disabled father. See Hernandez-Avalos, 784 F.3d at 950 n.7 (“[N]ot…every threat that references a family member is made on account of family ties.”).

Indeed, the circumstantial evidence in the record reflected a different reason for Cortez-Mendez’s harassment: he rejected the gangs’ recruitment efforts. Substantial evidence supported the IJ’s and BIA’s conclusions that the “neighborhood gangs observed the family’s poverty and concluded they could easily recruit” Cortez-Mendez and that it was after Cortez-Mendez refused to join the gangs that they threatened him. Cortez-Mendez even admitted that he left El Salvador because had rejected gang membership. At most, Cortez-Mendez demonstrated that the gangs may have targeted him because of his poverty but only threatened him because he would not join their ranks. Flight from gang recruitment is not a protected ground under the INA. See Zelaya v. Holder, 668 F.3d 159, 166–67 (4th Cir. 2012). Consequently, Cortez-Mendez’s own testimony of his circumstantial fears defeated his argument that a protected ground like his relation to his disabled father was “at least one central reason for” his treatment in El Salvador. Crespin-Valladares, 632 F.3d at 127.

Accordingly, the petition for review was denied.