South Carolina Criminal Lawyer Blog

John Edwards was recently indicted on six counts, including charges for conspiracy, campaign contribution law violations, and issuing false statements. Edwards was indicted in the Middle District of North Carolina. He pled not guilty to the charges.

If John Edwards goes to trial and is convicted, his appeal will be heard in the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit hears appeals from North Carolina, South Carolina, Virginia, West Virginia and Maryland. Edwards appellate attorney could raise a variety of issues in his brief, depending on what was preserved at trial. For example, his appeal lawyer could argue that there was insufficient evidence to convict him or that he was innocent of the charges. The court may also decide to hear oral arguments, therefore, Edwards federal appellate lawyer would likely travel to Richmond, Virginia to make the presentation to the court.

Edwards could still file an appeal if he decides to plead guilty, as long as his plea agreement does not contain a valid appellate waiver. He could appeal his actual term of imprisonment. For example, Edwards may argue that his sentence was unreasonable or that the court applied a sentencing enhancement erroneously.

John Edwards is facing serious charges and it will be interesting to see how his criminal defense attorney handles his case.

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The Fourth Circuit Court of Appeals published an opinion on August 16, 2010 regarding the case of United States v. Cooper. Cooper filed a 2255 motion alleging that his counsel provided him insufficient legal representation because he failed to consult with him about appealing his case. Cooper originally pled guilty to two drug trafficking offenses and a firearms offense without first obtaining a plea agreement. The U.S. Attorney's Office eventually agreed not to request an enhancement in his sentence if Cooper did not object to his presentence investigation report. Cooper accepted the offer and received 121 months imprisonment, which was the lower level of the guidelines.

During his sentencing hearing, there was no indication that Cooper desired to file an appeal. The 4th Circuit found that a defendant's counsel is not necessarily required in all circumstances to advise his client about an appeal. However, there is a constitutional duty to consult with the defendant about an appeal when there is reason to believe that a rational defendant would want to appeal or that the particular defendant indicated that he or she was interested in appealing. In determining whether a rational defendant would want to appeal, the court must look to objective facts surrounding the case. These particular facts can only be evaluated on a case-by-case basis. The Court concluded that Cooper's attorney would have no reason to believe that Cooper wished to appeal because Cooper wanted to take a guilty plea. As a result, the Court affirmed the judgment of the lower district court.

In these types of instances, a client is not always satisfied that they received the best defense. This is the reason that it is extremely important to hire an attorney that has your best interests in mind. An experienced federal defense attorney is able to make sure that you are informed of all your options. Further, if you do choose to file an appeal, your attorney should also be familiar with the appellate process. A good federal appellate lawyer can advise you on the issues that may be relevant to your appeal and make sure that it is timely filed.

Continue reading "Choosing the Right Attorney" »

United States District Judge Amy St. Eve has released Conrad Black from federal prison pending the outcome of his federal appeal. The bond is set at $2,000,000.00. The federal judge allowed Black out based in part on the U.S. Supreme court's recent decision regarding the "honest services" defense. Black was convicted of defrauding shareholders of his company Hollinger International Inc. through fake non-compete agreements that benefited Black. Black's federal defense attorneys were able to successfully get him a bond by arguing that this Supreme Court decision could affect his sentence and previous trial outcome. In federal court there are limited circumstances that allow a convicted defendant be released on bond pending the appeal. Most of those situations revolve around white collar cases. Most white collar defense attorneys have an appellate lawyer they can rely on to handle this area of the case.
Once a person is convicted by a jury or pleads guilty to a federal indictment, sentencing usually does not occur for several months. Many federal defense attorneys are able to keep their clients out of custody until sentencing. Once sentencing occurs most defendants that are sentenced to a term of imprisonment are taken into custody that day. The federal defense lawyer must be ready to present evidence to the federal judge showing that the defendant should be allowed to stay out pending the appeal. The judge will usually deny this request without some solid argument being presented by the defense attorney. In Black's case he was taken to prison and was only released because of the recent changes in the Supreme Court's interpretation of the law. The 7th Circuit Court of Appeal granted his release. Black's case was the case the Supreme Court reviewed under this issue and he had been found not guilty of most of the counts of fraud in his indictment. Black, unlike many defendants, was able to hire a very effective federal defense attorney and a very effective federal appellate attorney.

Continue reading "Bond Granted to Conrad Black Pending his Federal Appeal" »

The Mace Firm appellate attorneys have won another federal appeal this year with this recent Fourth Circuit Decision. This is the second federal appeal won this year out of the Fourth Circuit. This case was handled by our federal trial attorney in South Carolina for sentencing. The Federal Judge disagreed with our defense attorney and gave the defendant a 10 prison term based on the Armed Career Criminal Act (ACCA). The appellate court vacated that ruling and now the defendant will be returned to the trial court for sentencing. The opinion is below.

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4346
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK LEON SAMUELS,
Defendant - Appellant,
Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:08-cr-00183-RBH-1)

Submitted: June 22, 2010 Decided: July 8, 2010

Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.
Vacated 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, Rose Mary Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Case: 09-4346 Document: 28 Date Filed: 07/08/2010 Page: 1
2
PER CURIAM:
Derrick Leon Samuels pleaded guilty to being a felon in possession of ammunition, a violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e) (2006). The district court enhanced Samuels’s sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), after determining that Samuels had three prior convictions for violent felonies. On appeal, Samuels contends that the district court erred in counting his 1994 conviction under South Carolina law for failure to stop for a blue light as a violent felony.
In United States v. Roseboro, 551 F.3d 226 (4th Cir. 2009), we held that a conviction under South Carolina law for failure to stop for a blue light, S.C. Code Ann. § 56-5-750(A), constituted a crime of violence under the ACCA only in some circumstances, namely, intentional violations of the statute. Id. at 240. The district court, acting only with the benefit of that decision, determined that Samuels’s conviction under the statute was intentional because “the indictment does indicate the word willfully,” which the district court felt “equate[d] to intentional conduct.” Accordingly, the district court concluded that Samuels’s conviction counted as an ACCA predicate offense.
We recently held, however, that in light of the Supreme Court’s decision in Chambers v. United States, U.S. , 129 S.Ct. 687 (2009), which was issued eight days after
Case: 09-4346 Document: 28 Date Filed: 07/08/2010

Roseboro, “a violation of South Carolina’s blue light statute . . . does not qualify as a predicate offense for purposes of the ACCA.” United States v. Rivers, 595 F.3d 558, 560 (4th Cir. 2010).
Accordingly, the district court erred in counting Samuels’s conviction for failure to stop for a blue light as a violent felony for purposes of the ACCA. We therefore vacate the judgment of the district court and remand the case for resentencing consistent with our decision in Rivers. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
VACATED AND REMANDED
Case: 09-4346 Document: 28 Date Filed: 07/08/2010 Page: 3

As you can see our federal appellate attorney continues to work hard for our clients.

Continue reading "Another Federal Appeal Won " »

In determining whether to accept a plea offer, the Defendant and his attorney must carefully review the ramifications for choosing to go forward with a plea agreement. In U.S. v. Delante Antwyne Roper, the Fourth Circuit Court of Appeals ruled that the appellate waiver contained within Roper's plea agreement was valid. Although, Roper attempted to withdrawal his plea before he was sentenced, the Court found that he knowingly and intelligently waived his rights. If the Court determines the waiver is valid, then it will enforce it when the issues are within the scope of the waiver. In the instant case, the waiver was very broad and allowed Roper to question the validity of his conviction within his initial brief.

In his appeal, Roper asserted that the district court erred in denying his motion to withdraw his guilty plea as his counsel coerced him into accepting the offer. However, the Court reasoned that Roper willfully admitted during his Rule 11 hearing that he understood the term of the plea agreement and stated that no outside promises or influences had been made. There are several factors that must be considered when deciding if a plea should be withdrawn; for example:

(1) Was the plea knowingly and voluntarily made by the Defendant?
(2) Does the evidence presented prove the Defendant's innocence?
(3) Is the Defendant's counsel competent?

There are numerous other questions that the Court must consider in this type of instance and the Defendant must present evidence that credibly asserts some of those factors. Otherwise, the Court will be unlikely to grant a withdrawal as in Roper's case. This is the reason that it is important to hire a knowledgeable appellate attorney in order to ensure that all the issues are addressed within your appeal. We have criminal defense attorneys that are prepared to assist you in your case and are experienced within the federal and state systems.

Continue reading "Appellate Waivers" »

The Fourth Circuit rendered a decision in U.S. v. Pettiford on June 3, 2010 in which conditions for granting the 28 U.S.C. Sec. 2255 for post-conviction relief are addressed. Pettiford had several convictions on his record prior to his arrest for being a felon in possession of a firearm. Under the Armed Career Criminal Act (ACCA), if individual has three or more prior convictions for violent crimes or serious drug offenses, then they are subject to an enhancement. During sentencing, Pettiford had a total of five (5) state court convictions that were applied pursuant to this act. After he was sentenced, two of those convictions were actually vacated and Pettiford brought forth a petition for post-conviction relief; otherwise known as a 2255 petition. The district court granted this motion reasoning that Pettiford was entitled to relief as he proved that two of the charges used against him were, in fact, vacated. He was resentenced from a term of 188 months imprisonment to 100 months after the court found that another conviction did not apply under ACCA either.

However, the government filed an appeal alleging that the district court erred in granting Pettiford a Sec. 2255 petition. The Fourth Circuit agreed with the government and found that Pettiford was not entitled to this relief because he did not prove that his sentence was unlawful because he would have been subject to the same sentencing enhancement until the district court determined that one of his prior convictions did not apply during resentencing. He did not address these issues in his petition or in his direct appeal, so the Court determined that vacatur alone is not enough. It only entitles a petitioner to seek review. As such, Pettiford's original sentence was reinstated.

This is an interesting decision by the court since it clarifies the requirements under Sec. 2255 more thoroughly and provides specifics on the types of issues involved with the ACCA. These are the reasons that it is most important to hire an experienced South Carolina appellate lawyer to address every issue applicable in the appeal. The Court of Appeals can only look to the record below to decide if something has been violated and, therefore, some controversial issues may not be considered. A federal appellate attorney would be able to assist you in determining what are the most important circumstances involved in your case and the best way to present them before the court. Our firm handles a variety of federal appeals within the Fourth Circuit and is widely knowledgeable about the requirements in filing these types of briefs.

Continue reading "Armed Career Criminal Act " »

The Fourth Circuit Court of Appeals released its decision today on U.S. v. Nicholas Omar Tucker. Tucker filed a § 2255 motion alleging an ineffective assistance of counsel. Tucker chose to plead guilty to felon in possession of a firearm and under the Armed Career Criminal Act, a mandatory minimum of fifteen years is imposed if it is found that an individual had three prior violent felony convictions. To meet the standards for a violent felony, the term of imprisonment must exceed one year. Also each conviction must be a separate criminal charge to verify that the occasions were in fact different. Tucker's presentence investigation report indicated that he had a conviction for assault and battery of a high and aggravated nature; however, he was sentenced in Magistrate's Court to only thirty days. As such, this charge does not constitute a valid predicate offense under § 924(e). Further, the two burglary convictions that Tucker was charged with were not proven as distinct within the PSR, which relied solely on the police officer's investigative reports. Since Tucker was with an accomplice, the government could not prove that the two offenses were distinct and that Tucker entered each location himself.

Since Tucker's attorney did not object to any of the above findings, the Court concluded that this demonstrated an accurate reasoning for an ineffective assistance of counsel allegation. The Court determined that Tucker's sentence was effected by his attorney's actions, which is one of the key aspects it must review when considering these types of motions. Further, in removing two of Tucker's previous violent offenses, the three offense requirement was no longer met under the Armed Career Criminal Act. This means that he did not qualify as a armed career criminal under the statute and that the mandatory minimum did not apply. In light of these facts, the district court's order was vacated and they have been notified to resentence Tucker pursuant to the relief he requested in the § 2255 motion.

In cases such as this, it is important to make sure that you hire an attorney that is knowledgeable of the federal statutes in order to ensure that the court is aware of any issues or inconsistencies. Choosing the right criminal defense attorney is vital in establishing a proper defense and receiving a fair judgment and/or sentence. Our South Carolina attorneys have a vast amount of experience in both state and federal courts and handle criminal cases all over the United States. If you have been charged with a crime, our attorneys can assist you in the appellate process and provide you with your available options. Remember, once you are sentenced, you only have ten days to appeal the judgment. You must hire an appellate attorney that can file the necessary documents in order to acquire the records that will need to be included in your initial brief. Please contact our office today if you are seeking to appeal your sentence at 1-800-94-TRIAL.

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Time is of essence when reviewing a case for a federal criminal appeal. Our federal appellate attorneys are experienced with handling these cases on a daily basis. Hiring the right attorney at his level is your last chance at freedom and your last chance to get back into the justice system. In the Federal Court System the time period to file just the notice of appeal will begin the moment one is sentenced by the court. A good appellate attorney knows these timelines by heart and will be ready to get the preliminary issues related to your case underway. Court reporters and clerks must be contacted and directed to provide specific material to our law firm in order to get the appeal underway. Appeals can range in size from 10 pages up to over 40 depending on the issue presented in the trial or hearing. Every pages can represent a full day or more of legal research and writing. They can expand if there are issues that need extensive attention based on a constitutional violation. Our appellate attorneys in South Carolina are available many times during the week to discuss any appellate issue you or your family may want to discus.

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