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Media Alerts - United States v. McCoy -- Fourth Circuit
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October 28, 2015
  United States v. McCoy -- Fourth Circuit
Headline: If You Do the [Past] Crime, the Court Can Add on Time: Fourth Circuit Declines to Extend Howard and Affirms Upward Departure in Sentence Based on Stale Convictions

Areas of Law: Criminal Law, Criminal Procedure, Sentencing

Issues Presented: Whether the district court abuses its discretion by considering stale convictions from the defendant's youth when making an upward departure from the sentencing guidelines. Whether it is substantively unreasonable for the court to apply a higher criminal history category than the Government requested in sentencing. Whether a sentence is rendered substantively unreasonable by a post-sentence retroactive amendment to the Sentencing Guidelines.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit affirmed the District Court's decision to apply an upward departure to Dilade McCoy's sentence based on his prior criminal history. While affirming McCoy's 188-month sentence, the Fourth Circuit also distinguished this case from its holding in the 2014 case United States v. Howard.

Extended Summary: When he was fifteen years old, Dilade McCoy was convicted of two robberies. At age seventeen, he pled guilty to assault with a deadly weapon with intent to cause serious injury. In all three of these cases, McCoy was tried as an adult. In 2005, five years after he was discharged from the assault sentence, he was convicted for possession of cocaine. Most recently, in 2014, a jury convicted McCoy of conspiracy to distribute and possession with intent to distribute more than 500 grams but less than 5 kilograms of cocaine. This was McCoy's fifth criminal conviction since 1986.

McCoy's probation officer considered only the 2005 conviction when making his Presentencing Investigation Report ("PSR") for McCoy's 2014 conviction. The PSR set McCoy's base offense level at 32 and his criminal history category at II. The Sentencing Guidelines prescribed a sentencing range of 135 - 168 months.

The Government requested that the District Court allow an upward departure under section 4A1.3 of the Guidelines because of McCoy's serious criminal history. Section 4AI.3 allows for an upward departure when reliable information indicates that the defendant's criminal history category substantially underrepresents the defendant's criminal history or likelihood to commit another crime. The Government asked for the criminal history category to be raised to level IV and for a 192-month sentence. The United States District Court for the Eastern District of Virginia noted that McCoy's criminal history was "quite serious" and considered all three of McCoy's stale convictions to find a criminal history category of V. The court sentenced McCoy to 188 months in prison.

Dilade McCoy appealed his sentence and asked the Fourth Circuit to apply its reasoning from United States v. Howard, 773 F.3d 519 (4th Cir. 2014), to find that the upward departure was unreasonable. McCoy argued that the District Court (1) improperly considered his stale juvenile convictions from twenty-five years ago, and (2) unreasonably applied a higher criminal history category than the one the Government requested.

In Howard, the Fourth Circuit found substantively unreasonable an upward-departure life sentence imposed on a man convicted of drug-related crimes. In its reasoning, the Howard court faulted the sentencing court for treating the defendant, then age forty-one, as a de facto career criminal because of non-violent crimes he committed when he was under eighteen. The Howard court also found it significant that the Government had requested a 360-month sentence, yet the court sentenced Howard to life.

The Fourth Circuit panel distinguished McCoy's case from the one in Howard. McCoy's stale convictions were for serious, violent offenses, unlike the non-violent ones involved in Howard. Moreover, McCoy reoffended five years after his second jail sentence, showing a greater likelihood of recidivism. Most notably, the Fourth Circuit found the upward departure here, only twenty months difference, was much more modest that the one in Howard, which increased a 121-month sentence to life. The Fourth Circuit also found it insignificant that the District Court applied a higher criminal history category than the one the Government requested because the District Court still sentenced McCoy to less time than the 192-month sentence the Government suggested.

Lastly, McCoy claimed that his sentence was substantively unreasonable because Amendment 782 to the Guidelines went into effect after he was sentenced. Amendment 782 is a retroactive amendment that lowers the base offense levels for certain applicable drug-related crimes. The Fourth Circuit panel clarified that post-sentencing amendments do not make a pre-amendment sentence unreasonable and advised McCoy that he can request application of Amendment 782 by making a motion under 18 U.S.C. § 3582(c)(2) in District Court.

To read the full opinion, click here.


Panel: Judges Motz, King, and Gregory

Argument Date: September 17, 2015

Date of Issued Opinion: October 15, 2015

Docket Number:
No. 14-4745

Decided: Affirmed by published opinion

Case Alert Author: Natalie Bilbrough, Univ. of Maryland Carey School of Law

Counsel: Gregory Bruce English, ENGLISH LAW FIRM, PLLC, Alexandria, Virginia, for Appellant. Angela Mastandrea-Miller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Case Alert Circuit Supervisor: Renée Hutchins

    Posted By: Renee Hutchins @ 10/28/2015 04:12 PM     4th Circuit  

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