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Week 19 (2020)

Week of May 8 through May 10, 2020

United States v. Doctor, 958 F.3d 226 (4th Cir. 2020) (Gregory 5/4/2020): The Fourth Circuit affirmed the district court’s revocation of defendant’s supervised release and resulting sentence. The court relied on plain error review on the defendant’s actual conduct to determine he committed a crime of violence and thus a Grade A violation. Full Opinion

United States v. Lewis 958 F.3d 240 (4th Cir. 2020) (Keenan 5/4/2020): The Fourth Circuit held that the district court failed to provide an adequate explanation for imposing as a special condition of supervised release the requirement of addiction treatment and failed to address the defendant’s nonfrivolous mitigation arguments. The court vacated the district court’s judgment imposing sentence, and remanded the case for resentencing. Full Opinion

Highlight Case

Cucalon v. Barr, 958 F.3d 245 (4th Cir. 2020)

  • Majority Opinion: Keenan
  • Argued: October 30, 2019
  • Decided: May 7, 2020

The Fourth Circuit held Virginia Code § 18.2-248 is divisible by prohibited substance. Applying the modified categorical approach, the court held that distribution of cocaine under Virginia Code § 18.2-248, including distribution of that substance as an accommodation under Virginia Code § 18.2-248(D), satisfies the federal definitions of an “aggravated felony” and of a crime “relating to a controlled substance.” It also concluded that the Board of Immigration Appeals (BIA) did not abuse its discretion in denying the defendant’s motion to reconsider because his request to present the additional evidence of other Virginia indictments was untimely.

Gustavo Cucalon, a native and citizen of Nicaragua, petitioned for review of a final order of removal issued by the BIA. The BIA concluded that Cucalon’s conviction in 2006 for distribution of cocaine as an accommodation, in violation of Virginia Code § 18.2-248(D), rendered him removable as an alien convicted of an “aggravated felony,” and as an alien convicted of a crime “relating to a controlled substance.” In Cucalon’s view, because Virginia prohibits the distribution of more substances than those prohibited under federal law, a conviction under Virginia Code § 18.2-248 does not categorically qualify as an “aggravated felony” or as a crime “relating to a controlled substance” under the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i).

The court noted its lack of jurisdiction to review an order of removal based on an alien’s conviction of an aggravated felony or of a crime relating to a controlled substance. Nevertheless, the court noted jurisdiction to review constitutional claims and questions of law, including the question whether an alien’s conviction qualifies under either or both of these categories of removable offenses.

To determine whether a state offense constitutes a drug trafficking crime or a crime related to a controlled substance under the INA, the court generally applies a categorical approach comparing the federal definitions of “drug trafficking crime” and crime “relating to a controlled substance” to the elements of the relevant state offense. Both parties stipulated that Virginia Code § 18.2-248 is categorically overbroad because Virginia includes on its controlled substances schedules at least one substance not listed on the federal schedules. However, the court relied on its analysis from Bah v. Barr, finding that the Virginia possession statute is divisible by substance because Virginia Code § 18.2-248 prohibits distribution of “a controlled substance,” confirming that distribution of each substance listed on the Virginia schedules “goes toward a separate crime.”

Accordingly, the Fourth Circuit denied the petitioner’s petition to review.

Full Opinion

Zachary A. Turner