Criminal Law

Dist. Ct. did not commit plain error in sentencing defendant on remand to 165-month term of incarceration on charge of conspiracy to distribute mixture of methamphetamine, where said sentence was based, in part, on increase in criminal history category from III to V, to reflect fact that defendant had been convicted of two state-court charges during time defendant’s direct appeal had been pending. While defendant argued that recalculation of criminal history category exceeded scope of underlying remand order, there was no barrier to Dist. Ct. considering intervening convictions when re-sentencing defendant on remand. Moreover, issues that arise anew on remand are generally within scope of remand.

Dist. Ct. did not err in denying defendant’s section 2241 petition that challenged his two unlawful possession of firearm by felon convictions under Rehaif, 139 S.Ct. 2091, where defendant claimed that record did not show that he knew at time of his possession of firearm that he was felon. Record showed that defendant had previously filed unsuccessful section 2255 habeas petition, and savings clause in section 2255(e) that would allow defendant to proceed on section 2241 petition required showing that error was grave enough to be deemed miscarriage of justice. In that regard, Dist. Ct. could properly find that defendant failed to show that any alleged error was grave enough to constitute miscarriage of justice through showing of actual innocence, where: (1) at time of defendant’s possession of firearm, defendant had previously been convicted of criminal trespass charge that carried 23-month term of incarceration, although defendant had only served five months of said incarceration and had been paroled for balance of sentence; and (2) while defendant asserted that he was unaware that his criminal trespass conviction was punishable by more than one year in prison, defendant failed to present evidence that would require any reasonable juror to find existence of reasonable doubt with respect to defendant’s unlawful possession of firearm charges. Ct. also observed that instant two unlawful possession of firearm charges were based on defendant’s conduct in carrying out three armed robberies and held that no reasonable juror would have acquitted defendant of unlawful possession of firearm by felon charges, where defendant essentially argued that he had non-criminal mindset regarding his possession of firearm while he was planning and carrying out three armed robberies. (Dissent filed.)

Dist. Ct. did not err in imposing above-guideline, 48-month term of incarceration on charge of unlawful possession of firearm, even though said sentence was based, in part, on Dist. Ct.’s finding that defendant qualified for obstruction of justice enhancement based on phone call that defendant made at police station to his mother to throw away gun located in defendant’s bedroom. While defendant argued that obstruction of justice enhancement was not proper, since he did not intend to obstruct any investigation, and since no federal investigation had begun by time he made his phone call to his mother, Ct. of Appeals found that said enhancement was properly imposed, where: (1) applicable guidelines do not distinguish between state and federal investigations; and (2) state investigators had begun investigating defendant’s involvement in shooting incident that formed basis of instant charge, and thus defendant had interfered with that investigation when he directed his mother to hide gun. Fact that police overheard defendant’s phone call to his mother did not require different result. Ct. further found that defendant’s criminal history and circumstances of charged offense justified imposition of above-guideline sentence.

Dist. Ct. did not err in sentencing defendant to 188-month term of incarceration on four 2016 drug distribution charges, where said sentence was based in part on finding that defendant qualified for career offender treatment, that, in turn, was based in part on defendant’s state-court conviction on 2011 charge of possession of cocaine with intent to deliver, which, according to defendant, constituted relevant conduct with request to his conviction on 2016 charges. Although finding that defendant’s conviction on 2011 charge constituted relevant conduct with respect to 2016 charges would disqualify defendant for career offender sentencing treatment, relevant conduct guidelines treat as relevant conduct all acts that were part of same course of conduct or plan as offense of conviction. Moreover, record did not support defendant’s claim that his conviction on 2011 charge qualified as relevant conduct for instant 2016 offenses, where: (1) 2011 offense concerned only single, small controlled purchase involving different drug than 2016 offenses; and (2) five-year gap militated against finding that 2011 offense was part of common scheme or same course of dealing with respect to 2016 offenses that concerned significantly larger purchases of different drugs. Alternatively, defendant would still be assigned same criminal history category of VI absent finding as career offender status, where defendant’s criminal history, absent traffic and minor offenses, would place him in VI category.