South Carolina Criminal Lawyer Blog

According to the South Carolina Judicial Department, the Court of Appeals affirmed the lower court's decision in State v. Perry Keith Strickland. Strickland was previously convicted of voluntary manslaughter and ABHAN (assault and battery of a high and aggravated nature). He argued in his appeal that the trial court erred in denying his motion for a directed verdict. This type of motion is usually presented during a jury trial, where the presiding judge decides which side wins prior to a jury verdict. In Strickland's case, he believed that he had established self-defense as a matter of law; however, the Court of Appeals disagreed. They found that Strickland did not meet each of the four (4) requirements for an argument of self-defense and that the lower court followed correct procedure in submitting the case to the jury.

On several occasions in Strickland's trial, the testimony was contradictory as to the events that transpired. Allegedly, an argument occurred and Strickland and two (2) other males began fighting. The Court of Appeals found that the circumstances of this case could not be decided based solely on a matter of law, but by that of a jury that can interpret the facts. Therefore, the Court reasoned that the case was properly presented before a jury.

In this type of instance, it is important to hire an experienced appellate lawyer in South Carolina that can ensure that all of the issues on appeal are raised. Strickland was not able to prove his self-defense claim and as such, his appeal was affirmed. When reviewing the transcript of proceedings, an attorney should be able to advise you on the appropriate and non-frivolous issues that need to be addressed within your initial brief. Our South Carolina lawyers handle appeals on both the state and federal level and can assist you with your appeal.

Continue reading "Strickland Appeal Affirmed" »

The Supreme Court of South Carolina reversed and remanded a case for resentencing on July 12, 2010 involving a criminal sexual conduct charge. Nicholas Boan, the petitioner in the matter, had also been charged with two (2) counts of lewd act upon a child along with the instant offense. At sentencing the judge orally announced that Boan would receive twenty years for the first offense; however, the written sentencing order indicated he would serve thirty years. His trial counsel made no motions to this error and Boan's direct appeal was dismissed. Boan attempted to file a motion for post-conviction relief and it was denied.

In addressing this sentencing issue within a writ of certiorari, Boan alleged that he had been provided ineffective assistance of counsel since his counsel failed to respond to the sentencing discrepancy relating to his first offense. The Supreme Court found that this case, in fact, passed the two-pronged test in determining ineffective assistance. Boan showed that his counsel was deficient in failing to file a motion and also proved that this mistake prejudiced him as he would have likely been sentenced to a lesser term. The Court also reasoned that an oral pronouncement is binding over a written order since a Defendant's due process rights would be violated otherwise; meaning the Defendant has a right to be present during sentencing. As such, the Supreme Court ordered the first offense be remanded to the lower court for resentencing.

In this type of case, it is important for your appellate counsel to review the transcripts from the record below in order to determine if there are any issues that can be addressed on appeal. Our appellate attorneys in South Carolina are knowledgeable in these types of cases and can assist you in your appeal.

Continue reading "Writ of Certiorari" »

Kenneth Hinson won his federal appeal from a conviction for possessing a firearm by a convicted felon this year and has now be sentenced again by the federal judge who presided over the prior federal trial. The appellate victory was based on a sentencing error committed by the trial judge. The Fourth Circuit Court of Appeals in Richmond, Virginia reversed the sentence based on the trial judge using inappropriate prior conduct of the defendant to sentence him to a higher than applicable term of imprisonment. This case was taken to federal court after Hinson was acquitted of state charges related to kidnapping and sexual assault. Hinson's federal defense attorney was not listed in the news and did not provide any comment on the new sentence. The new sentence of less than 10 years is much better for Hinson than his prior sentence of 25 years.
Hinson was taken into federal custody in court after his acquittal on the state charges. This means the federal prosecutors where lying in wait to indictment him if he were found not guilty.
Hinson will now have the opportunity to appeal this sentence. His attorneys had argued in court that a 6 year sentence was the most the judge could give him. The case will go back to the Fourth Circuit Court Of Appeals in Richmond. Hinson's appellate attorney will have some time to draft the appeal and submit it to the Fourth.

Continue reading "Federal Defendant in Florence Sentenced AGAIN" »

On May 13, 2010, the South Carolina Court of Appeals reversed the decision of the trial court in State v. Syllester D. Taylor. Taylor was originally arrested in July of 2006 for possession with intent to distribute (PWID) cocaine base. The appellate court concluded that the officers that arrested Taylor did not have reasonable suspicion to stop him as they did not witness him attempt to sell or purchase any drugs. In this case, the officer received an anonymous tip that a black male was riding a bicycle in the area and they suspected possible drug activity was taking place. The court found that receiving tips of this nature lack reliability since the person is unknown and could be providing false information. In such an instance, further investigation must take place that proves reasonable suspicion before an individual can be detained. Basically, in most cases, anonymous witnesses do not have credibility, thus the officer must observe criminal activity prior to making a stop. The tipster that identified Taylor did not prove to have inside information into his affairs nor any predictive information about his future whereabouts; therefore, they were deemed unreliable by the Court of Appeals. Further, after arriving at the location, the officer did not notice any behavior that could be associated with drug activity because he did not witness any drug exchange or concealment. Therefore, the court ruled that the officer had not established reasonable suspicion and had no legal right to search or apprehend him. As such, the court reversed his conviction and vacated his sentence.

In order to clarify cases involving these types of issues, the court did find that an officer should take into consideration the criminal activity notably involved in an area; however, that cannot be the only cause for suspicion. Further, there may be a combination of normally innocent actions, but when placed together, it may amount to reasonable suspicion. Some factors that can contribute to this finding are apparent nervousness and evasion. On the other hand, the court determined that there are innocent reasons as to why a person may evade police and in such cases, if an officer does not have reasonable suspicion, the individual can ignore the officer.

Although the lower court denied Taylor's initial motion to suppress the cocaine evidence obtained as a result of an illegal search and seizure, the Court of Appeals found a substantial error in its decision. This is primarily why it is important to retain an appellate attorney that will be able to protect your best interests and identify keys issues such as these on appeal. Taylor could have served a term of imprisonment for thirty years, but he was able to present evidence found in the record below that supported his claim. Going through this type of proceeding can be difficult and often discouraging as the appellate process can take years, so one must seek the advice of an attorney immediately. If you or someone you know is seeking to appeal their conviction, contact one of our South Carolina attorneys today at 1-800-94-TRIAL.

Continue reading "Appellate Defense" »

Johnell Porter appealed his convictions for a list of crimes in relation to a robbery committed in York County (The State v. Johnell Porter). Mr. Porter submitted his appeal before the South Carolina Court of Appeals on March 1, 2010 and an opinion was published on April 5, 2010.

Allegedly, Mr. Porter along with his co-defendants robbed a bank located in York County. Witnesses identified the make and model of the getaway vehicle and the York County Sheriff’s Department was on high alert. An officer spotted the vehicle and noticed that the suspects were heading toward Charlotte, North Carolina. They were immediately arrested after the driver pulled into an apartment complex. Shortly thereafter, officers from the Charlotte Police Department arrived and the suspects were transferred to their custody. Officers located numerous items directly related to the robbery, so the suspects were extradited to York County.

Mr. Porter was charged with several different crimes that were all connected with the armed robbery conspiracy. He decided to represent himself pro se. Employees and customers from the bank could not verify the identity of the suspects because they were wearing ski masks, but “bait money” was located in the vehicle in question. Additionally, two co-defendants testified that Mr. Porter was involved in the robbery. As a result, the jury found him guilty on all counts and he was sentenced to life in prison.

The main issue involved in this case was determining whether the trial court erred in denying dismissal of the above charges due to the fact that Mr. Porter was arrested in North Carolina by South Carolina officers. The appellate court did not agree with Mr. Porter’s argument because he failed to present relevant authorities to support his claim. This is the reason that it is extremely important to retain a knowledgeable South Carolina defense attorney that has experience with appellate issues. Mr. Porter chose to represent himself pro se during his trial and as a result, he may have missed several key issues that were applicable for appeal. When the Court of Appeals reviews a case, it is only allowed to consider records in the court below, meaning the information available within the transcript of proceedings. Retaining an appellate attorney to represent you in a criminal appeal is vital to ensure that all potential issues and arguments are addressed in the initial brief.

Continue reading "Pro Se, Not the Right Way" »

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" »

Our firm files several federal appeals each year and our appellate attorneys have just won another case. This was a federal appeal based on a sentencing error by the trial judge. This appellate decision brings to light just how many errors can be committed during the sentencing face of a federal case. Below is the opinion of the Fourth Circuit Court of Appeals:

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4830
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KELVIN JEROD HOLMAN, a/k/a J-Five,
Defendant – Appellant.
Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Margaret B. Seymour, District Judge. (5:04-cr-00964-MBS-2)
Submitted: October 22, 2009 Decided: November 13, 2009
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South Carolina, for Appellant. W. Walter Wilkins, United States Attorney, Stacey D. Haynes, Assistant United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Case: 08-4830 Document: 31 Date Filed: 11/13/2009 Page: 1
PER CURIAM:
Kelvin Jerod Holman timely appeals from the 360-month sentence imposed after pleading guilty to one count of conspiracy to distribute five kilograms or more of cocaine and fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2006). On appeal, Holman argues that the district court erred in applying the two-level sentence enhancement, pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 3B1.1(c) (2007), and that his sentence is unreasonable. We affirm Holman’s conviction, but vacate his sentence and remand for resentencing.
Holman first asserts that the district court erred in applying the two-level sentence enhancement, pursuant to USSG § 3B1.1(c), for his role in the conspiracy. Holman urges us to review the district court’s imposition of the sentence enhancement for clear error. Generally, “[a] district court’s findings regarding sentence enhancement are factual in nature and are reviewed only for clear error.” United States v. Carter, 300 F.3d 415, 426 (4th Cir. 2002). However, where the defendant failed to object to the enhancement in the district court, this court reviews for plain error. United States v. Wells, 163 F.3d 889, 900 (4th Cir. 1998). Upon review of the sentencing hearing transcript, it appears that Holman did not object to the USSG § 3B1.1(c) sentence enhancement; his only
2 Case: 08-4830 Document: 31 Date Filed: 11/13/2009 Page: 2
objections were to the amount of drugs attributed to him in the Presentence Investigation Report (“PSR”). Thus, we review for plain error.
To demonstrate plain error, a defendant must show that: (1) there was an error; (2) the error was plain; and (3) the error affected his “substantial rights.” United States v. Olano, 507 U.S. 725, 732 (1993). We are not required to correct a plain error unless “a miscarriage of justice would otherwise result,” meaning that “the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 736 (internal quotation marks, alteration, and citations omitted).
Pursuant to USSG § 3B1.1(c), a two-level increase to the defendant’s base offense level is warranted “[i]f the defendant was an organizer, leader, manager, or supervisor” in the charged offense and the offense involved less than five participants. The adjustment applies if the defendant organized, led, managed, or supervised one or more participants. USSG § 3B1.1, cmt. n.2. The Guidelines identify the following factors courts should use to distinguish between leaders, organizers, managers, supervisors and other participants:
the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense,
3 Case: 08-4830 Document: 31 Date Filed: 11/13/2009 Page: 3
the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
USSG § 3B1.1, cmt. n.4.
Holman contends that the district court erroneously relied on disputed facts in the PSR in assessing the enhancement. Federal Rule of Criminal Procedure 32(i)(3)(B) requires the district court to “make a finding with respect to each objection a defendant raises to facts contained in a presentence report before it may rely on the disputed fact in sentencing.” United States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991). However, in doing so, the district court is permitted to “expressly adopt the recommended findings contained in the presentence report.” Id. When the district court takes this approach, “it must make clear on the record that it has made an independent finding and that its finding coincides with the recommended finding in the presentence report.” Id.
Here, the district court stated that “we have an adjustment for role, which is a plus two” and later adopted the findings of fact in the PSR as the reasons for the sentence. In the PSR, the probation officer relied on paragraphs 17, 19, and 54 in applying the USSG § 3B1.1(c) enhancement. While there is no mention of an objection to paragraph 54, Holman asserts that he objected to paragraphs 17 and 19. Our review of the sentencing transcript reveals that Holman only objected to
4 Case: 08-4830 Document: 31 Date Filed: 11/13/2009 Page: 4
paragraph 19, and only to the extent that he disagreed with the drug amounts attributed to him. The district court resolved that objection, stating that “the court will not use . . . the testimony . . . with regard to counting the drug weights.” Because Holman failed to object to any information in the PSR with respect to the sentence enhancement, the district court properly adopted the undisputed findings in the PSR, as permitted by Morgan, and could rely on those findings in assessing the enhancement.
Holman, however, relying on our decision in United States v. Chambers, 985 F.2d 1263, 1269 (4th Cir. 1993), also contends that the district court failed to apply the factors in USSG § 3B1.1, cmt. n.4 or provide specific reasons for applying the enhancement. In Chambers, we vacated the district court’s sentence and remanded for further proceedings because, “without specific factual findings showing that the district court evaluated the defendant’s role in the offense in light of the factors in [USSG § 3B1.1] application note 3[1], we cannot conduct meaningful appellate review of this issue.” Id. We instructed the district court to apply the above factors to determine whether the defendant’s role in the conspiracy
1 Now application note 4.
5 Case: 08-4830 Document: 31 Date Filed: 11/13/2009 Page: 5 6
warranted a sentence enhancement, and if so, note which factors justified the decision. Id.
2 Because we conclude that the district court erred in failing to address the USSG § 3B1.1, cmt. n.4 factors and remand for further proceedings on that issue, we need not consider Holman’s alternative challenge to the procedural and substantive reasonableness of his sentence.
We find that, while the district court properly adopted the findings of fact in the PSR, it erred by failing to specifically apply the USSG § 3B1.1, cmt. n.4 factors to those findings to determine whether Holman’s role warranted the two-level enhancement. Because the sentence imposed was greater than that to which Holman would have been subject absent the error, we further conclude that the error affected Holman’s substantial rights. See United States v. Hughes, 401 F.3d 540, 548 (4th Cir. 2005). Therefore, we vacate Holman’s sentence and remand for the district court to consider the above factors to determine whether the sentence enhancement is justified.2
Accordingly, we affirm Holman’s conviction, but vacate his sentence and remand for resentencing. We dispense with oral argument because the facts and legal conclusions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

Our appellate attorneys are available to represent clients nationwide in federal court.

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" »