South Carolina Criminal Lawyer Blog

In a recent opinion, United States v. Rivers, the United States Court of Appeals for the Fourth Circuit readdressed whether a conviction for failure to stop for a blue light in South Carolina constitutes a crime of violence under the Armed Career Criminal Act ("ACCA"). In light of the Supreme Court's decision in Chambers, the Fourth Circuit held that this state crime does not qualify as an ACCA predicate.

Federal law prohibits previously convicted felons from possessing a firearm. Normally, under section 924 of the United States Code, a felon in possession of a firearm could receive a maximum sentence of up to ten years in prison. However, a defendant charged with possession of a firearm by a convicted felon with three prior convictions for a violent felony or a serious drug offense qualifies as an armed career criminal. As a result, the accused is subjected to a mandatory minimum sentence of fifteen (15) years imprisonment. It is therefore important to inform your criminal defense attorney of any prior convictions when charged with any federal crime, especially a firearms offense.

The Fourth Circuit previously held in Roseboro that a conviction under South Carolina's failure to stop for a blue light satisfied the test established by the United States Supreme Court in Begay v. United States and qualified as a violent felony. The Roseboro court used the modified categorical approach to determine that the crime could constitute a violent felony if the underlying conduct included willful or intentional behavior. However, in Rivers, the court held that failure to stop for a blue light only contains one category of crime, so using the categorical approach outlined in Chambers, the court determined that this south carolina state conviction can never qualify as an ACCA predicate.

Prior convictions are routinely used in federal court to enhance a defendant's sentence. It is therefore important to contact an experienced federal attorney when facing a federal indictment.

Continue reading "Failure to Stop For a Blue Light No Longer a Crime of Violence Under the ACCA" »

The Fourth Circuit is widely considered as the most conservative appellate court in the United States. However, it is also the most efficient, the Fourth Circuit usually issues its decisions within seven months after the initial brief and the government's answer brief is filed.

The court hears appeals from the District of Maryland, Eastern District of North Carolina, Middle District of North Carolina, Western District of North Carolina, the District of South Carolina, Eastern District of Virginia, Western District of Virginia, Northern District of West Virginia, and the Southern District of West Virginia. The Courthouse is located in Richmond, Virginia. There are 15 judgeships, 10 active judges, one senior judge who continues to hear cases part time, and two retired judges who no longer hear cases.

When an appellate attorney receives oral arguments on a case, each side gets twenty minutes to argue their side to a panel of three Judges, and each Judge may ask questions relating the issues presented in your brief. A three light timer is used to monitor each side. When the light is green, counsel may begin, when only five minutes remain, the green light is changed to a yellow light, when the five minutes expire, the red light appears, signaling that counsel is out of time.

As a mater of tradition, the Fourth Circuit Judges come down from the bench after each oral argument to greet the appellate lawyers and to thank them for their advocacy.

Continue reading "Oral Arguments in the U.S. Court of Appeals for the Fourth Circuit" »

The Fourth Circuit has recognized that alienage is an improper basis for a sentence and violates due process. The Sentencing Guidelines also expressly prohibit a sentencing court from considering a defendant's national origin when calculating a term of imprisonment. In U.S. v. Salama, the Fourth Circuit held that it was harmless error for district court to comment about the defendant's alien status based on the particular facts of the case, however, the appellate court did note that the remarks were inappropriate. In U.S. v. Munoz, the United States Court of Appeals for the Fourth Circuit determined that a district court could consider a defendant's background, characteristics and conduct, thus, a court may refer to a defendant's alienage. For example, a court may make a reference to a defendant's national origin to deter similar criminal conduct by others of the same ethnic background, as long as alienage is not the basis of the sentence. The Munoz Court held that the connection between the targeted group for deterrence and the individual being sentenced must be the offense conduct and not the individual's national origin.

This issue will again be examined by the Fourth Circuit Court of Appeals in its December 2009 term. It will be interesting to see how the appellate court treats alien status as a factor in sentencing proceedings in light of the Supreme Court's decision in Booker. Other Circuit Courts, like the Second Circuit and Eighth Circuit Court of Appeals, have held that even the appearance that a sentence reflects a defendant's race, national origin, or alienage requires that the sentence be reversed. In the initial brief and reply brief, the appellant argues that the Fourth Circuit should adopt a similar rule. The government argues in its appellate brief that any error was harmless.

In Federal cases, a defendant is sentenced in a separate court hearing that is set well after a guilty plea or guilty verdict after a jury trial. During this hearing, the district court calculates a defendant's guideline range, address objections to the pre-sentence investigation report, decides whether any sentencing enhancements are appropriate, and if a downward or upward departure should be granted. Federal sentencing proceedings are complicated and as a result, the District Court often commits reversible error during these proceedings. The appellate court will reverse a defendant's sentencing when the District Court improperly applies the law or violates a defendant's constitutional rights.

When filing a federal appeal, an appellate lawyer uses case law precedent of the Circuit Court and U.S. Supreme Court to argue the defendant's position. However, in cases that present an issue that has not been addressed in that particular court of appeals, a federal appellate attorney will cite cases from other circuit courts to support their argument. It will be interesting to see what questions the Fourth Circuit will ask at oral arguments in Richmond, VA in December, and whether the Fourth Circuit will join the Second and Eighth Circuit in holding that even the appearance of ethnic or racial bias by a district court when imposing a sentence is unconstitutional, which would require a reversal and remand for a new sentencing hearing.

Continue reading "Fourth Circuit to Address Alien Status as Factor in Sentencing" »

In a recent opinion out of the District of South Carolina in Charleston, Chief Judge Norton issued an opinion stating that Failure to Stop for a Blue Light is not a crime of violence, even if the state court indictment includes the word "intentional" or "willful." Most appellate attorneys practicing in the Fourth Circuit Court of Appeals agree this opinion appears to conflict with the Roseboro decision decided this past January in the Fourth Circuit. In that case, the appellate court determined that failure to stop for a blue light was not a crime of violence when applying the test established in Begay because the statute included negligent and intentional conduct. However, the Fourth Circuit in Roseboro also held that a district court in a federal sentencing could find that South Carolina's failure to stop for a blue light was a crime of violence if based on willful conduct. The Court of Appeals concluded that intentionaly failing to stop after being signaled to do so was inherently dangerous and could qualify a crime of violence for sentencing purposes pursuant to the ACCA and the career offender provision of the United States Sentencing Guidelines.

In the Johnson opinion, Chief Judge Norton argues that failure to stop for a blue light does not qualify as a crime of violence under the Armed Career Criminal Act ("ACCA") in light of the Supreme Court's decision in Begay. When examining the South Carolina statute, it does not require intentional conduct and is closer to a strict liability crime, a defendant's mens rea is not an element of the crime. Failure to stop for a blue light is also not similar in degree and risk to the crimes of burglary, extortion, arson, or crimes involving explosives. The offense does not always involve purposeful, aggressive, and violent.

This opinion could greatly affect federal sentencing in the District of South Carolina. Many federal attorneys in South Carolina have clients who have pled guilty to failure to stop for a blue light. Federal criminal lawyers know that if a defendant has three or more prior convictions that constitute a serious drug offense or a violent felony could possibly be sentenced as an armed career criminal, and as a result, could face a mandatory minimum sentence of fifteen years in prison. A good criminal attorney will now argue at sentencing that failure to stop for a blue light no longer qualifies as a predicate offense under the ACCA, even if the state court indictment includes the word 'intentional' or 'willful.'

Continue reading "Chief District Judge Addresses Failure to Stop for a Blue light under Begay" »

Once a person is convicted of a felony crime in the Court of General Sessions, they have ten (10) days to file a Notice of Appeal in South Carolina. All appeals from General Sessions are directed to the Supreme Court. If the case is non-capital, the court may decide to transfer it to The Court of Appeals. If the party is incarcerated, they may be eligible for bail, depending on the judge’s ruling and the severity of the offense. However, bail will not be granted if the convicted party has been sentenced to death, life imprisonment or more than ten (10) years in prison.

When the South Carolina Court of Appeals reviews a case, it is only allowed to consider records in the court below. An appellate attorney would be able to determine the circumstances of a case that are appealable to the court by reviewing the transcript of proceedings. The appellate attorney would file an initial brief with the court, which includes relevant issues of the case for the court to review. When the court hears the case, they may decide to affirm the sentence and conviction, meaning that there are no errors of law substantial enough to reverse the decision of the lower court. The court can also reverse the judgment of the court below, which could possibly result in a new trial.

If the party is dissatisfied with the ruling in the Court of Appeals, they have an option to file a petition for the Supreme Court of South Carolina to review the decision. The Supreme Court has jurisdiction and reviews rulings of law reached by lower courts at trial or on appeal. While reviewing a particular case, the Supreme Court takes into account the transcript of proceedings before the lower court and briefs filed by each party’s attorney. During some instances the court grants oral arguments, which is also one of the key factors in its decision.

A convicted party’s retained trial attorney has an obligation to notify his/her client of their right to appeal. The attorney also has a duty to file the notice of appeal if their client wishes to appeal the conviction and sentence. When a party files a notice of appeal, it is important to seek the advice of a South Carolina appellate attorney to determine the correct procedure involved in filing an appeal in South Carolina.

Continue reading "South Carolina Appeals" »

The Fourth Circuit Court of Appeal in Richmond, Virginia is set to have several judges retire in the coming year. With this in mind President Obama will have the opportunity to appoint new Appellate Judges to fill the positions. The Fourth Circuit covers all federal appeals from South Carolina, North Carolina, Virginia, West Virginia and Maryland. It is also one of the most conservative courts in the country. The Fourth Circuit is generous about giving oral arguments to appellate attorneys compared to other appellate jurisdictions. The court has been filled by Republican candidates for many years. The new court will consist of many Obama appointees.

The Chief Judge retired earlier this year because of an early diagnosis of Alzheimers disease. This was a shock as Judge Williams was quiet young. Judge Traxler will be the new Chief Judge for the Fourth Circuit. The Fourth Circuit covers the Southeastern section of the United States. The Eleventh Circuit comes in to exert jurisdiction over Georgia and Florida. Many decisions from the Fourth Circuit have bee harsh on defendants in federal indictments. Many appeals for criminal cases are given quick decisions by the court. Appellate attorneys in South Carolina have had several Fourth Circuit judges in past from their home state. The new judges will more likely come from Virginia and Maryland which tend to be more Democratic based.

Continue reading "Fourth Circuit Appellate Court to Change Judges" »

In United States v. Cameron, appellate number 08-4277, the defendant was convicted of three counts of uttering counterfeited obligations and one count of falsely making and counterfeiting obligations of the United States. The appellant, through his appellate attorney, challenged his conviction of falsely making and counterfeiting obligations in violation of 18 U.S.C. section 471. The defendant's appellate lawyer argued that the government failed to present an evidence that he actually used a computer to manufacture counterfeit bills, that there was no evidence presented at trial about the details of the counterfeiting operation, only one counterfeit image was found on his sister's computer, his sister's printer was never recovered, and that his fingerprints were found on a small portion of the evidence seized from his home.

The Fourth Circuit Court of Appeals relied on the circumstantial evidence presented by the government linking the appellant to manufacturing the bills, the testimony of an FBI agent who matched the serial number on the counterfeit computer image to a bill found in the defendant's home and held that there was sufficient evidence to sustain his conviction.

However, the Fourth Circuit reversed the appellant's sentence, finding that the evidence was insufficient to support the four level enhancement he received for being a leader or organizer of a counterfeiting operation. Pursuant to 3B1.1(a) of the United States Sentencing Guidelines, a person is subjected to this leadership enhancement if he was the leader or organizer of criminal activity that involved five or more participants or was otherwise extensive. The defendant must actual have a leadership role over another participant.

The Fourth Circuit noted that there was no evidence that the appellant planned, or organized the criminal activity, and more importantly, there was no evidence that he exercised any control or authority over the other participants, recruited other accomplices, or that he claimed any or a large share of the profits of the criminal activity.

This opinion suggests that a defendant must have more of a leadership role than manufacturing counterfeit bills to qualify for the four level enhancement. This opinion also reinforces the view that a sentencing court must usually find that a defendant actually had control over another participant in the criminal activity.

Continue reading "Printing Counterfeit Bills Insufficient to Support a Leadership Enhancement" »

In recent news it has been confirmed that Justice Souter, a United States Supreme Court Judge, will be retiring in the next few weeks. The media is already speculating about President Obama's potential nominees. Although the U.S. Supreme Court hears only a select number of cases each year, these cases often have a profound effect on the legal system across the country.

For example, when the Court ruled in Booker v. United States that the United States Sentencing Guidelines were no longer mandatory, th sentencing methods in Federal Court were drastically changed. District Court Judges were no longer bound by the guidelines and were free to give a "reasonable" sentence after considering the sentencing factors in 18 U.S.C. section 3553(a). In United States v. Kimbrough, the court addressed the crack cocaine ratio and the disparity it created in sentencing.

In South Carolina, a federal case begins in the District of South Carolina. South Carolina has one district with several divisions, including Florence, Aiken, Spartanburg, Columbia, Charleston, and Greenville. If a defendant wishes to appeal a conviction and sentence in the District Court of South Carolina, it must be filed in the Fourth Circuit. The Fourth Circuit hears cases from all of the district courts in Virginia, West Virginia, North Carolina, South Carolina and Maryland.
Once an opinion is issued in the Fourth Circuit, a defendant has the option to file a writ of certiorari in the United States Supreme Court.

Appellate attorneys in South Carolina and across the country will be paying close attention to Obama's Supreme Court nomination.

The Court of Appeals in South Carolina in State v. Williams has ruled that the exclusion of several convictions of a confidential informant could not have reasonably affected the the outcome of the trials. The court held that it was harmless error to exclude the prior convictions of the informant, including armed robbery, larceny, forgery and housebreaking.

In the Federal system, confidential informants are often key witnesses who testify on behalf of the government. They are used in the state system as well. Most confidential informants have prior records are are working with local law enforcement to shave time off their convictions. Therefore, evidence of the confidential informant's prior convictions can often show the jury that they are in fact biased.

A good federal criminal defense attorney can impeach these witnesses to show they are untrustworthy through the evidence of their prior convictions. A federal defense lawyer can also show the jury that many of these confidential informants are paid by law enforcement to purchase drugs.

In South Carolina, Federal Courts are located in Greenville, Columbia, Florence, Charleston, Anderson, Rock Hill, and Spartanburg. All of these divisions are part of the District of South Carolina. If you have been indicted with a federal crime, you will need to hire an experienced federal attorney in Myrtle Beach, Charleston, Columbia or Florence.

Continue reading "Confidential Informant's Credibility in Cocaine Distribution Case at Issue" »

O.J. Simpson's case is now headed for the appellate courts of Nevada. His motions for a new trial were denied this week and he is going to need a very good appellate attorney to file a brief and argue his case. O.J. has yet to be sentenced by the trial judge. If he is given a small prison sentence he may not aggressively appeal his case. O.J.'s criminal defense lawyers have already raised several issues that will be addressed by a good appellate attorney.

One of the first issues that was raised related to the jurors bias towards O.J.. The jury selection process gives attorneys the opportunity to have jurors hear a case without any preconcieved opinions about the defendant or the case. In O.J.'s case there are allegations that many jurors had strong opinions about O.J. and his prior murder trial. The opinions of jurors affect the trial process and prohibit an unbiased review of the evidence that is presented in trial. This issue can be a basis for a reversal of O.J.'s conviction. A good appellate attorney will be able to provide ample case law to support the appeal related to jury selection and information that jurors may not have provided in the initial voir dire.

Our office practices appellate law in federal courts and state courts. Our Federal Appellate Attorney is more than capable in many jurisdictions. We also offer appeals in South Carolina, Georgia and Florida.

Continue reading "O.J. Simpson Goes to the Appellate Courts" »