Thursday, November 29, 2012

The First Paragraph of 18 U.S.C. § 1546(a) Prohibits the Possession or Use of Authentic Immigration Documents Obtained Fraudulently

In United States v. Kouevi, No. 10-3529 (October 24, 2012), the Third Circuit addressed the issue of whether the defendant’s conduct was criminalized by the first paragraph of the visa fraud statute, 18 U.S.C. § 1546(a). This appeal raises a question of statutory construction that is an issue of first impression in our Circuit.

Kouevi was born in Lome, Togo. The Government contends that he conspired with others to use fraudulent means to obtain authentic visas for at least 34 people through the American Embassy in Togo, and that those persons then used those visas to enter the United States.

The schedule involved “diversity visas”, which are made available to citizens of countries who send relatively low number of immigrants to the United States each year. The visas are a means of promoting diversity within the annual pool of immigrants entering the United States.

According to the evidence at trial, Kouevi and his co-conspirator worked with individuals in Togo who were actually eligible for diversity visas, but were unable to either complete the necessary paperwork, pay the required fees, or afford the airfare to travel to the United States.

A co-conspirator paid the required fees of persons who were eligible for the diversity lottery and assisted them in completing their paperwork. In exchange, the applicants were required to falsely represent that other unrelated individuals were their spouses and/or children, so that those individuals could also obtain visas to enter the United States under the program.

Kouevi was responsible for coordinating the preparation of false documents used to support the fraudulent visa applications, and he tutored participants in the details of their false identities to prepare them for their interviews at the American Embassy in Togo. He also accompanied visa applicants to government offices in Togo and helped them acquire false passports, marriage certificates and similar documents required to support their visa applications. This included obtaining additional false evidence of purported relationships including fake wedding rings and fake wedding pictures. He quizzed the applicants about the details of their identities and otherwise coached them in how to successfully interview at the American Embassy. He then took them to the American Embassy for their interviews. In return, his co-conspirator helped him fraudulently obtain his own visa and paid his costs for the visa and airfare to the United States.

Kouevi was subsequently charged in a two-court indictment with conspiracy to commit visa fraud, in violation of 18 U.S.C. § 37, and visa fraud, in violations of 18 U.S.C. § 1546(a). He was convicted on both counts and sentenced to 26 months imprisonment.
Kouevi contends that his conviction for violating 18 U.S.C. § 1546(a) should be reversed because the first paragraph of the statute he was convicted of violating does not criminalize activities involving authentic immigration documents. His argument attempts to distinguish between producing a counterfeit or fraudulent passport or visa and obtaining an authentic passport or visa by fraudulent means.

The Court held that the plain language of the statute reveals that the first paragraph of 18 U.S.C. § 1546(a) prohibits the possession or use of authentic immigration documents which are obtained by fraud.

Friday, November 09, 2012

Government may object to timeliness of appeal at any point up to and including its merits brief

In United States v. Muhammud, 10-3138 (Decided: Sept. 28, 2012; Published Nov. 5, 2012), the Third Circuit joined several of its sister circuits in holding that the government may object to the timeliness of an appeal, under Fed.R.App.P. 4(b), at any point up to and including in its merits brief.

Appellant Muhammad's guilty plea contained an appellate waiver and a collateral attack waiver. He did not directly appeal his conviction, but did file a 28 U.S.C. § 2255 petition nearly one year after his conviction became final, arguing that his guilty plea had been entered under duress. The district court enforced the waiver, dismissed the petition and denied a Certificate of Appealability (COA). The Third Circuit also denied Mr. Muhammad's request for a COA.

One year after the denial of his request for a COA and two years after his conviction became final, Mr. Muhammad filed a notice of appeal from his judgment of conviction. The government, believing the notice of appeal was challenging the dismissal of the § 2255 petition, did not move to dismiss the appeal as untimely. Instead, one month after the notice of appeal was filed, the government moved to enforce the appellate waiver and for summary affirmance.

The Court directed the parties to brief the issue of timeliness under Rule 4(b). The government challenged the appeal as untimely. The Third Circuit joined several of its sister circuits in holding that the government may object to the timeliness of an appeal, under Fed.R.App.P. 4(b), at any point up to and including in its merits brief and dismissed Mr. Muhammad's appeal as untimely. However, the Court "strongly encouraged" the government to file a motion to dismiss a criminal as untimely at the outset of the appeal in order to save the time and costs associated with ordering transcripts and preparing full briefs. Finally, the Court also noted, in dicta, that it also agreed with other courts of appeals that a court may sua sponte raise untimeliness under Rule 4(b).

Thursday, November 01, 2012

Successive § 3582 Motions Not Jurisdictionally Barred; Defendant Whose C Plea Not Explicitly Based on Guidelines Is Not Eligible for Relief

United States v. Weatherspoon, --- F.3d ----, 2012 WL 4800974 (3d Cir. Oct. 10, 2012). After the Sentencing Commission made retroactive the amended crack offense levels in 2008, Weatherspoon sought a sentence reduction, which was rejected because he was sentenced pursuant to a binding plea agreement. Following the Supreme Court's decision in Freeman v. United States, 131 S.Ct. 2685 (2011), holding that a defendant sentenced pursuant to a C plea agreement that recommends a sentence "based on" the Sentencing Guidelines is eligible for relief, Weatherspoon filed a second motion for sentence reduction.

The Circuit first addressed jurisdiction. The government argued for the first time on appeal first that § 3582(c)(2) only permits one motion for a sentence reduction and that the district court lacked jurisdiction to consider the second motion, and second, that the Law of the Case Doctrine precluded review. The Circuit found it had an independent duty to determine its own and the district court’s jurisdiction., but otherwise deemed the government’s arguments waived. It held that a district court has subject matter jurisdiction to consider a second motion for relief pursuant to 18 U.S.C.A. § 3582(c)(2), based on a retroactive Guidelines amendment, as Congress did not clearly state its intent to limit jurisdiction to one motion.

Reaching the merits of Weatherspoon’s appeal, the Circuit found that his sentence, stated in the "c" plea, was not explicitly based on his Sentencing Guidelines range so as to permit a sentence reduction under Freeman v. United States. Here, the agreement provided for a fixed sentence of 120 months’ imprisonment. Looking to the "four corners of the plea agreement," the Court concluded that the agreement was not clear that the sentence was based on the Guidelines. The agreement did not in any way identify or rely on the range. Because the agreement was not explicitly based on his Guidelines range, the district court properly denied Weatherspoon’s motion.

Sentence Procedurally Unreasonable Where Court Failed to Address Variance Argument

United States v. Begin, --- F.3d ---, 2012 WL 4784362 (3d Cir. Oct. 9, 2012).   Begin appealed from his 240-month sentence for using the internet and a cellular phone to "attempt to persuade a minor to engage in any sexual activity for which a person can be charged" - in this case statutory rape.

Begin argued that the sentence was unreasonable because the district court failed to consider his argument that a variance was warranted based on the disparity between a sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under state and federal law.   Although at sentencing the district court acknowledged and heard argument on Begin’s request, the court did not ask any questions and did not discuss or actually rule on the variance request.  In its final review of the sentencing factors the court simply stated:  "This sentence also takes into account the need to avoid unwarranted disparities in sentencing among defendants with similar records who have been found guilty of similar conduct."

 The Circuit first determined that Begin's claim that his sentence for attempting to induce statutory rape, (18 U.S.C. § 2422(b)), should not exceed the maximum penalty for actually committing (federal) statutory rape, (18 U.S.C. § 2422(b), was an argument with colorable legal merit, citing United States v. Ausburn, 502 F.3d 313 (3d Cir. 2009).   The district court here failed to make a sufficient record to demonstrate its consideration of that argument, or even specifically rule on the request for a variance. Accordingly, the sentence was procedurally unreasonable.

With respect to Begin’s state-federal disparity argument, the Circuit found that state-federal disparities are NOT relevant under § 3553(a)(6), and the district court was not required to address that part of Begin’s argument.

Maximum Term on Revocation of Supervised Release Is Based on Class of Underlying Felony at the Time of the Offense

United States v. Turlington, --- F.3d ----, 2012 WL 4237611 (3d Cir. Sept. 21, 2012) (published Oct. 16, 2012). In this case defendant’s conviction for conspiring to distribute more than 50 grams of cocaine base was a class A felony, permitting up to five years of imprisonment on revocation of supervised release pursuant to 18 U.S.C.A. § 3583(e)(3). The Fair Sentencing Act amendments reduced the maximum term of imprisonment for Turlington’s offense, such that it is now a class B felony, which would now permit only three years of imprisonment of revocation of supervised release.

The Circuit held that where an underlying offense was a class A felony at the time of conviction, but has since been reduced to a class B felony, the maximum term of imprisonment upon violation of supervised release, pursuant to 18 U.S.C.A. § 3583(e)(3), is still determined based on the classification of the offense at the time of conviction. The Court cited Johnson v. United States, 529 U.S. 694 (2000), in which the Supreme Court found that new revocation terms were a part of the first offense of conviction, and McNeil v. United States, 131 S.Ct 2218 (2011), holding that in determining whether a prior conviction qualified as a predicate under the ACCA, a court must look at the prior offense as it was at the time of conviction.

Third Circuit grants habeas relief because defense counsel was ineffective in failing to object to judge threatening perjury witness changed his testimony

  In Rogers v. Superintendent Greene SCI , --- F.4th ----, 2023 WL 5763346 (3d Cir. Sept. 7, 2023), available here , the Third Circuit rever...