Dhamian Blue has been recognized in the 2020 Edition of North Carolina Super Lawyers. Super Lawyers is a rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. According to the publication, “[t]he objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.” Lawyers cannot nominate themselves, and must limit their nominations to others who practice in the same state. Additionally, only five percent of the total lawyers in North Carolina are selected for inclusion in Super Lawyers.
Mr. Blue’s practice focuses on complex commercial litigation, white collar criminal defense, and serious personal injury cases.
Blue LLP partner Dhamian Blue has been recognized by Business North Carolina as one of the state’s “Legal Elite.” Legal Elite is a listing of the state’s top lawyers in business-related categories. Honorees are selected by their peers in the bar, and voters are not allowed to vote for themselves. Mr. Blue focuses his practice on commercial litigation and white collar criminal defense.
Supreme Court Declares Federal Gun Law Unconstitutionally Vague, Preserving Blue 4th Circuit Victory
In a 5-4 decision in United States v. Davis, the Supreme Court held that 18 U.S.C. 924(c)(3)(B) is unconstitutionally vague. That statute imposes a consecutive, mandatory minimum sentence for a defendant who is convicted of possessing a firearm in furtherance of a crime of violence. Relying on recent precedent invalidating similar provisions in the Armed Career Criminal Act and 18 U.S.C. 16(b), the Court declared what is known as the “residual” definition of a crime of violence — one that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” — to be unconstitutionally vague.
We have previously written about the technical features of the residual clause that make it unconstitutional here and here. But in the majority opinion, Justice Gorsuch also reaffirms from the outset the proper roles of the courts and Congress in prohibiting certain conduct under federal law:
In our constitutional order, a vague law is no law at all.Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutesthat give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legisla-ture’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attachto their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.
The Supreme Court took up Davis because the lower appellate courts had issued conflicting opinions regarding the residual clause’s constitutionality. One of the last appellate courts to do so was the Fourth Circuit in United States v. Simms, a case briefed and argued by Blue LLP partner Dhamian Blue. In Simms, issued on January 24, 2019, the Fourth Circuit, sitting en banc, also held that 924(c)(3)(B) was unconstitutionally vague, and now, Davis affirms the Fourth’s Circuit’s analysis.
For more information about Simms, Davis, and how the might impact a prior or pending federal prosecution, please contact Blue LLP partner Dhamian Blue.
In Gamble v. United States, No. 17-646, the Supreme Court upheld the separate sovereignty exception to the double-jeopardy rule, allowing both the federal and state governments to prosecute the exact same offense conduct.
The petitioner in Gamble was convicted and sentenced in Alabama state court to 10 years imprisonment (all but 1 year suspended) for the possession of a firearm by a felon. Apparently determining that Gamble’s sentence was too lenient, the federal government later prosecuted him for the same offense under federal law, resulting in almost 3 more years in prison.
In a 7-2 opinion, the Supreme Court reaffirmed its longstanding reasoning that the federal government and each state are separate sovereigns that can punish the same crime twice without violating the 5th Amendment’s double jeopardy clause.
Given the 170 year history of the separate sovereignty exception, repeated and failed attempts to reverse it, and the solid 7-2 majority reaffirming it, there is no longer any question as to whether successive prosecutions for the same offense by state and federal governments is constitutional.
Newly-sentenced defendants (and many attorneys for that matter) often wonder whether to appeal a conviction and sentence, despite having agreed to an appeal waiver during the plea bargaining process. Regardless of any particular defendant’s prospects of prevailing on appeal, the U.S. Supreme Court recently made clear that trial counsel’s failure to timely file a notice of appeal pursuant to his or her client’s instructions is deficient, prejudices the client, and therefore deprives the client of his constitutionally-guaranteed right to effective assistance of counsel.
In Garza v. Idaho, the defendant signed two plea agreements to resolve state criminal charges. Each plea agreement contained an appeal waiver, which in this case was a clause stating that the defendant “waive[d] his right to appeal.” Shortly after the sentencing hearing, the defendant told his lawyer that he wanted to file an appeal. The lawyer, however, did not file a notice of appeal, and told his client that “an appeal was problematic because he waived his right to appeal.” The appeal window closed with no notice having been filed on the client’s behalf.
Four months after the sentencing hearing, the defendant sought post-conviction relief in Idaho state court. He argued that his trial counsel was ineffective because he did not file the notices of appeal on his behalf. The Idaho trial court, Court of Appeals, and state Supreme Court all concluded that the defendant did not demonstrate that his trial counsel’s performance was deficient and that he was prejudiced as a result. In affirming the lower courts’ decision, the Idaho Supreme Court concluded that the presumption of prejudice, previously recognized by the U.S. Supreme Court in Roe v. Flores Ortega, does not apply when a defendant has agreed to an appeal waiver.
The U.S. Supreme Court disagreed. It held that the defendant was, in fact, prejudiced because “prejudice is presumed” when trial counsel’s “constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.” The Court further explained that the presumption of prejudice is not diminished just because a particular defendant has poor prospects on appeal or fewer possible claims than some other appellants.
Garza’s takeaway is simple and straightforward. Appeal waivers – even those that seem to foreclose all possibility of success on appeal – should not discourage a defendant or his counsel from timely giving notice of appeal if the defendant so requests. Criminal law is constantly evolving, and appealable issues that might appear to fall within the scope of a waiver at first glance might not be subject to dismissal. For example, while federal prosecutors will almost always pursue dismissal of an appeal that raises issues that are squarely within the scope of a valid appeal waiver, Garza re-confirms that prosecutors have discretion as to whether to seek the enforcement of the waiver. Additionally, matters concerning the constitutionality of a statute (and whether a criminal offense has been committed at all) arguably are never subject to waiver.
That said, Garza also does not mean that trial counsel should always indiscriminately give notice of appeal prior to a full discussion with the client. For example, in some cases, an ill-considered appeal might undermine a defendant’s ability to pursue a sentence reduction through a Rule 35 motion. When a defendant expressly declines to pursue an appeal, the best practice is to adequately inform him of his appellate rights and then secure written confirmation that he elects not to appeal. Alternatively, if a defendant is not certain, trial counsel should give notice of appeal to preserve the defendant’s appellate rights.
Current and prospective clients who face federal criminal prosecution often ask us whether, after arrest, they will be able to go home by posting bail through a bondsman, just as someone would in state court. Much to their surprise, the answer is no.
Following passage of the Bail Reform Act of 1984, federal courts largely moved away from the cash bail system that remains in state courts, and judges now consider a number of factors to determine whether a defendant should be released before final disposition of a case.
To be sure, federal magistrate judges still can, and do, allow pre-trial release through the posting of secure and unsecured bonds, but unlike state court, the judge decides whether the defendant should even have the opportunity to post a secure or unsecured bond. It’s not just a matter of the judge setting an amount and the defendant coming up with enough money to pay a bondsman.
And, in most cases, the question is simply whether the defendant should be detained until the case is resolved, or should be able to live with a relative pursuant to certain terms and conditions of release.
In order to answer some, but by no means all, questions, we have written a free guide to securing federal pre-trial release. You can download a copy by clicking on this text or the image.
If you have questions about it, please feel free to contact us through the forms on this website, call us at (919) 833-1931, or e-mail firstname.lastname@example.org.
Dhamian Blue has been recognized in the 2019 edition of Super Lawyers magazine in the Business Litigation category. He previously was recognized by the magazine as a Rising Star in 2013.
Super Lawyers is a rating service of lawyers from more than 70 practice areas. Its patented selection process includes independent research, peer nominations, and peer evaluations. No more than 5 percent of attorneys in North Carolina are recognized each year.
In United States v. Simms, No. 15-4640, in an 8 to 7 decision, the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, declared 18 U.S.C. § 924(c)(3)(B) unconstitutionally vague. Dhamian Blue represented the client on appeal.
18 U.S.C. § 924(c) criminalizes the use of a firearm in furtherance of a “crime of violence.” The issue is Simms was whether conspiracy to commit Hobbs Act robbery was a “crime of violence” as defined in § 924(c)(3)(B), also known as the “residual clause.” The residual clause defines a crime of violence as a crime that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
On appeal, Blue argued that the § 924(c) residual clause was unconstitutionally vague because similar language in the Armed Career Criminal Act was declared vague in United States v. Johnson, and identical language was declared as such in Sessions v. Dimaya. Th Court’s decision in Simms deepens the Circuit split on this issue, with four Circuits having held that the provision is unconstitutional, and three upholding the residual clause.
Today in Beckles v. United States, the US Supreme Court held that the United States Sentencing Guidelines are not subject to vagueness challenges under the Constitution’s Due Process Clause.