Federal Criminal Defense Newsletter

It is essential to have defense counsel knowledgeable in changes in the law. We at Evergreen Attorneys know that the law is in a constant state of change and a single decision can have a major impact on a federal criminal defendant’s case. That is why we strive to stay on top of cases of interest from across the country and report favorable cases to the public.

If you or someone you know have been charged with a federal offense, do not hesitate to contact the lawyers at Evergreen Attorneys. We can be reached at (303) 948-1489 or by email at [email protected].

Brenda Evers Andrew v. Tamika White, Warden: A Modern Retelling of The Scarlet Letter

American author Nathaniel Hawthorne published The Scarlet Letter in 1850. For those unfamiliar with the classic tale, the novel’s main character, Hester Prynne, is forced to wear a scarlet “A” upon her clothing for being found guilty of adultery. Hester is publicly humiliated, ostracized, and punished by the Puritan community.

In the case of Brenda Evers Andrew v. Tamika White, Warden, 605 U.S. __ (2025), the United States Supreme Court, in a per curiam opinion, noted the similarities between Ms. Andrew’s case and that of Hester Prynne. Federal criminal defense often draws on the themes of fiction that become true in real life.

Andrew was charged with the murder of her husband for the proceeds of his life insurance policy. At trial, the state prosecutor introduced evidence about Andrew’s sexual partners over two decades; outfits she would wear during dinner and grocery shopping, underwear she packed for vacation; and elicited testimony about her provocative clothing and asked others to comment on whether a good mother would dress and behave the way Andrew had.

The jury convicted Andrew and sentenced her to death. On appeal, Andrew argued that the prosecution had introduced irrelevant evidence in violation of Oklahoma law and the Due Process Clause of the Fourteenth Amendment. The Oklahoma Court of Criminal Appeals (“OCCA”) held that the admission of irrelevant evidence–which the state now agreed was irrelevant–was harmless error.

Andrew proceeded to file a petition for writ of habeas corpus in federal court under 28 U.S.C. § 2254, which was denied by the federal judge. That is when a federal criminal defense attorney files a request for the federal court to hold on hearing on the unlawful detention of an inmate. On appeal before the United States Court of Appeals for the Tenth Circuit, a divided panel affirmed Andrew’s conviction because, according to the court, she had failed to cite clearly “established federal law governing her claim.” Payne v. Tennessee, 501 U.S. 808 (1991).

Despite acknowledging that Andrew had cited to the Supreme Court’s prior decision in Payne which stated that the Due Process clause provides relief when unduly prejudicial evidence renders a trial unfair, the Tenth Circuit held that this was a “pronouncement” of the Supreme Court and not a “holding.” In a dissenting opinion, Tenth Circuit Judge Bacharan wrote that the state:

[P]ortrayed Ms. Andrew as a scarlet woman, a modern Jezebel, sparking distrust based on her loose morals . . . plucking away any realistic chance that the jury would seriously consider her version of the events.

After the Tenth Circuit’s adverse decision, Andrew took her case to the United States Supreme Court.

This case centered around whether the Court’s prior decision in Payne was a “holding” or mere dicta. The Court clarified, “When this Court relies on a legal rule or principle to decide a case, that principle is a ‘holding’ of the Court for purposes of the AEDPA.” The Court further explained that Payne did not invent due process protections against prejudicial evidence. The Supreme Court had previously held that prosecutors’ prejudicial or misleading statements violate due process if they render a trial or capital sentencing fundamentally unfair.

Concluding that Payne did hold that the Due Process clause provides a mechanism for relief where unduly prejudicial evidence taints a trial, the Court remanded the case to the Tenth Circuit to decide in the first instance whether a fair-minded jurists reviewing the record could disagree with Andrew that the trial court’s mistaken admission of irrelevant evidence was so prejudicial that it rendered her trial fundamentally unfair.

Justice Alito wrote separately concurring in judgment.

Justice Thomas, joined by Justice Gorsuch, wrote a dissent criticizing the majority’s summary disposition.

First Circuit Reverses Denial of Motion to Suppress

United States v. Giambro, No. 24-1052 (1st Cir. Jan. 15, 2025)

Dario Giambro was convicted of being a felon in possession of firearms under 18 U.S.C. § 922(g)(1). On appeal before the First Circuit, he argued that the district court erred in denying his motion to suppress evidence found by law enforcement when they forcibly entered his house without a warrant.

The United States District Court for the District of Maine denied Giambro’s motion to suppress on the ground that exigent circumstances allowed officers to enter the residence, an exception to the Fourth Amendment’s warrant requirement.

On appeal, the First Circuit agreed with Giambro that the entry was unjustified under the emergency aid exception and that there was no objectively reasonable basis for officers to conclude that they needed to enter the home for emergency assistance. Because the officers’ forced entry without a warrant violated the Fourth Amendment, the First Circuit reversed the denial of Giambro’s motion to suppress, vacated his conviction and sentence, and remanded to the district court.

Second Circuit Remands Denial of Compassionate Release Motion

United States v. Castillo, No. 23-6229 (2d Cir. Jan. 15, 2025)

Federal criminal defendants can move for a “compassionate release” under 18 U.S.C. § 3582(c)(1)(A). It’s one of the best tools available in federal criminal defense to help inmates come home from prison early. Frank Castillo filed his compassionate release motion in the U.S. District Court for the Southern District of New York based on his age and physical health. The district court acknowledged Castillo’s age and health problems but concluded that these were not “extraordinary and compelling” reasons for a reduction.

Castillo appealed the ruling to the Second Circuit Court of Appeals. The Second Circuit acknowledged that a district judge has broad discretion to determine what constitutes extraordinary and compelling circumstances warranting a compassionate release. However, the district court must be clear in its reasoning. The court of appeals remanded to the district court for further clarification on why Castillo’s age and health did not meet the extraordinary and compelling criteria for a sentence reduction.

Fourth Circuit Remands 28 U.S.C. § 2255 Motion for Evidentiary Hearing

United States v. McNeil, No. 22-6923 (4th Cir. Jan. 22, 2025)

Following his conviction and sentence in the U.S. District Court for the Eastern District of North Carolina, Allen McNeil filed a motion under 28 U.S.C. § 2255 alleging trial counsel was ineffective under the Sixth Amendment. Essentially, McNeil was claiming that his federal criminal defense lawyer did so poorly that he violated McNeil’s constitutionally guaranteed right to have the assistance of counsel. McNeil argued that counsel failed to move to suppress evidence under the Fourth Amendment and ignored his requests to seek a plea agreement with the government. The district court dismissed McNeil’s 2255 motion without a hearing.

On appeal, the United States Court of Appeals for the Fourth Circuit held that the motion could not be resolved on the minimal record before it. The court of appeals found that the district court is obligated to hold an evidentiary hearing on 2255 claims “[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b).

The Fourth Circuit found that McNeil had made a sufficient showing in his 2255 motion to warrant an evidentiary hearing, and the district court’s denial of the motion without a hearing was an abuse of discretion. Accordingly, the Fourth Circuit vacated the denial of the 2255 motion and remanded to the district court with instructions to hold an evidentiary hearing on both of McNeil’s claims of ineffective assistance of counsel.

Fifth Circuit Vacates and Remands Sentence Based on Application of Guidelines Enhancement

United States v. Le, No. 23-30888 (5th Cir. Jan. 16, 2025)

Le was convicted of supplying methamphetamine sold at a motorcycle shop rented by another person. At sentencing, Le was given a two-level Guidelines enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance. U.S.S.G. § 2D1.1(b)(12).

Le argued on appeal that the district court erred in applying the two-level enhancement because he did not maintain the motorcycle shop. Section 2D1.1(b)(12) is applicable to a defendant “[i]f the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance.” The Guidelines further note that the court should consider whether the defendant held a possessory interest in the premises and the extent to which the defendant controlled access to it. U.S.S.G. § 2D1.1 cmt. n.17.

Based on the record, the Fifth Circuit found that the district court clearly erred in applying the 2-level enhancement. Le’s sentence on the methamphetamine count was vacated and remanded to the district court for reconsideration.

Courts of Appeals Vacate Procedurally and Substantively Unreasonable Sentences

United States v. Shields, No. 23-4216 (4th Cir. Jan. 22, 2025)

Shields pleaded guilty to possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). His advisory Guidelines range was calculated to be 51 to 63 months imprisonment. The United States District Court for the Southern District of West Virginia imposed a sentence of 51 months.

At sentencing, Shields made arguments for a below Guidelines sentence and departure based on contested application of the Sentencing Guidelines. At sentencing, the court sustained the government’s objections and found for a higher Guideline range than Shields argued for. However, the court did not address or make any reference to Shield’s argument for a downward variance based on unwarranted sentence disparity.

A district court’s failure to address non-frivolous arguments at sentencing is procedural error. Recognizing the error, the Fourth Circuit vacated Shield’s sentence and remanded for resentencing.

United States v. Martin, No. 23-12139 (11th Cir. Jan. 14, 2025)

Martin was sentenced to 240 months imprisonment for Hobbs Act robbery, in violation of 18 U.S.C. § 1951. On appeal, Martin argued that the district court procedurally and substantively erred by failing to give any consideration to the Guidelines range in imposing an upward variance.

The Eleventh Circuit disagreed that the court procedurally erred in sentencing Martin to 240 months. However, in imposing the 115-month upward variance, the court of appeals found the sentencing judge imposed a substantively unreasonable sentence because it failed to adequately explain the reason for the extreme variance. Martin’s sentence was vacated and remanded for resentencing.

Eleventh Circuit Orders Resentencing Where Defendant Was Not Provided Opportunity to Speak at Sentencing

United States v. Pendergrass, No. 22-13018 (11th Cir. Jan. 13, 2025)

Rule 32 of the Federal Rules of Criminal Procedure requires the district court to offer the defendant the opportunity to allocute at sentencing (speak on his or her own behalf in mitigation). Where a defendant is deprived of that opportunity, the court’s failure constitutes clear and obvious error.

At sentencing, Pendergrass was never asked whether he wished to speak. The Eleventh Circuit found that this error affected his substantial rights and prejudiced him when the possibility of a lower sentence exists. Pendergrass’ sentence was vacated and remanded to provide him the opportunity to allocute at sentencing.

Contact Evergreen Attorneys for Help With Your Case Today

If you are in need of experienced federal criminal defense attorneys to assist you with your case, contact us today. You can also call us at (303) 948-1489 or email at [email protected].