Mims: After probation sentence, district court maintains ancillary jurisdiction over a criminal case to enforce restitution order

In United States v. Mims, No. 22-13215 (J. Pryor, Branch, Grant), the Court held that a district court, even after a defendant completes her probation term, maintains ancillary jurisdiction over a criminal case to enforce unsatisfied restitution obligations that had been included in the defendant’s sentence.

Applying the plain error standard, the Court also held that the district court did not violate Mims’s due process rights when it entered an order enforcing her restitution obligations. Because the district court neither ordered further monetary penalties nor altered the amount of the restitution owed, the Court determined that the district court did not modify Mims’s restitution obligations. And even if a modification did occur, it was proper under the procedural rule authorizing a district court to enforce its restitution order by “any order reasonably necessary to ensure compliance with a restitution order.” Fed. R. Crim. P. 38(e)(2). Meanwhile, the Court determined that Mims (1) had sufficient notice that the government sought her compliance with the restitution order, but (2) rejected each opportunity to be heard on that matter and her ability to repay the debt.

Gonzalez: Fourth Amendment Does Not Require A Misdemeanor To Occur In An Officer's Presence To Justify A Warrantless Misdemeanor Arrest

In United States v. Gonzalez, No. 23-10578 (July 19, 2024) (Wilson, Luck, Lagoa), the Court affirmed Mr. Gonzalez’s conviction, in accordance with his guilty plea, for possessing stolen mail in violation of 18 U.S.C. § 1708.

Mr. Gonzalez, based on a 911 complainant’s report and Miami-Dade police officers’ subsequent observations, was arrested for loitering and prowling—a misdemeanor under Florida law. The officers searched Mr. Gonzalez’s backpack incident to the arrest and found sealed mail that Mr. Gonzalez had removed from neighborhood mailboxes.

On appeal, Mr. Gonzalez argued that the officers lacked probable cause for the arrest because the Fourth Amendment does not permit a warrantless misdemeanor arrest for a misdemeanor committed outside an officer’s presence. The Court disagreed. It instead held that while an officer’s presence for a warrantless misdemeanor arrest would be consistent with the Fourth Amendment, it is not necessarily a constitutional prerequisite. This is so for three reasons. First, the Supreme Court has held that the Fourth Amendment need only guarantee at least as much protection against unreasonable searches and seizures as the common law had provided when the Amendment was adopted. The common law, however, had no "per se rule" that a misdemeanor arrest was unjustifiable unless the misdemeanor occurred in an officer’s presence. Second, rejection of that rule accords with the need for administrability of the Fourth Amendment. And third, the probable cause doctrine provides an acceptable avenue for challenging an arrest’s constitutionality.

Judge Luck concurred in judgment. Mr. Gonzalez's position, in his opinion, failed because common law had no "clear-cut rule" that an officer could not arrest a person for a misdemeanor committed outside the officer's presence. And besides, Mr. Gonzalez had partially committed his loitering-and-prowling misdemeanor in Miami-Dade police officers' presence. So any such rule, had it existed, would not have applied to his case.

Steiger: No Plain Error Concerning The Reasonableness Of A Twenty-Year Prison Sentence, Which District Court Imposed Following The Revocation of Appellant's Probation Sentence Based On His New Conviction Of Second-Degree Murder

In United States v. Steiger, No. 22-10742 (July 16, 2024) (CJ Pryor, J. Pryor, Coogler of N.D. Ala.), the Court (on remand from the en banc Court) affirmed Mr. Steiger’s twenty-year-prison sentence, which the district court imposed upon revoking Mr. Steiger’s original sentence of probation for four wire-fraud-related convictions.

The revocation stemmed from Mr. Steiger's intervening state-court conviction of second-degree murder.

The Court held that Mr. Steiger failed to demonstrate plain error with respect to the prison sentence’s procedural reasonableness. This is because the district court stated that it had considered the following: (1) every 18 U.S.C. § 3553(a) factor; (2) the applicable guidelines and policy statements from the Sentencing Commission; (3) court decisions; (4) the issues presented in the underlying case; (5) evidence presented at the revocation hearing, part of which concerned the nature and circumstances of the offense, as set forth in § 3553(a)(1); and (6) statements Mr. Steiger made in his defense. Additionally, the record indicated that the district court was aware of argument that the guidelines sentence was inadequate because of the seriousness of Mr. Steiger’s probation violation. Although the district court never explain why it had rejected Mr. Steiger’s request for a time-served sentence, the Court deemed it sufficient that the district court had relied on the record while making clear that it considered the parties’ arguments and the § 3553(a) factors.

The Court likewise held that Mr. Steiger failed to demonstrate plain error with respect to the prison sentence’s substantive reasonableness. Again, the district court had addressed the § 3553(a) factors, including having specifically mentioned that it considered evidence concerning the nature and circumstances of the second-degree murder. Also, the district court ordered that the sentences for each wire-fraud-related conviction run concurrently, rather than consecutively to each other.

Buselli: The Federal Murder-For-Hire Statute Is Intended to Describe the Generic Conduct Prohibited And Thus, Does Not Require Jury Instructions On Defenses to Murder Under State Law

In United States v. Buselli, No. 23-10272 (July 11, 2024) (Jordan, Lagoa, Hull), the Court affirmed Ms. Buselli’s convictions for murder for hire and making false statements to a federal agent, in violation of 18 U.S.C. §§ 1958(a) and 1001(a), respectively.

The murder-for-hire plot was intended for Ms. Buselli’s ex-boyfriend or some other third party to murder Ms. Buselli’s estranged husband. The related jury instruction provided that “[m]urder is the unlawful, premeditated killing of a human being with malice aforethought and is a violation of the laws of the State of Florida.” The Court rejected Ms. Buselli’s claim that this instruction needed to include language concerning Florida’s defenses of justifiable and excusable homicide and justifiable use of deadly force because such defenses could have resulted in a lawful killing. In any event, the Court added, the district court’s failing to provide defense instructions was harmless. Florida law on the defenses required evidence that Ms. Buselli sought either third party to kill the husband by accident or misfortune, or in an effort to defend Ms. Buselli herself from an attempted murder or from a forcible felony by the husband. But the record contained no such evidence. Additionally, evidence of the steps Ms. Buselli took to arrange for the husband’s killing belied argument that she intended to prevent an imminent forcible felony, as Florida law also required.

As to the false-statement conviction, Ms. Buselli made two statements to investigators: “I would never ask anyone to do something like this,” and “I don’t want something to happen to him.” The Court doubted that these statements—which were made after Ms. Buselli had been Mirandized and told that lying to a federal agent was a crime—were akin to pleading not guilty or demanding a jury trial under the Sixth Amendment. And given the lack of cited statutory text or binding precedent directly resolving such doubt, the Court held that Ms. Buselli’s false-statement conviction did not constitute plain error. Nor did the district court plainly err in instructing the jury on the false-statement statute’s mens rea elements.

Hernandez: A Pre-First Step Act Sentence That is Vacated Does Not Trigger § 403(a)’s Modified Stacking Rule

In United States v. Hernandez, No. 22-13311 (July 8, 2024) (Rosenbaum, Newsom, Luck), the Court affirmed Mr. Hernandez’s sentence for several 18 U.S.C. § 924(c) convictions, among other offenses on the same indictment.

Although Mr. Hernandez’s original sentence was pronounced before the First Step Act’s passage, it was judicially vacated after such passage. He therefore argued—and the government conceded—that the modified stacking rule under § 403(a) of the Act applied to his case. 

A majority of the panel disagreed. Mr. Hernandez’s argument, it reasoned, depends on whether the vacated sentence qualifies as “a sentence” that “has been imposed as of [the] date of [the Act’s] enactment,” within the meaning of § 403(b) of the Act. It does, the majority held. This is so because the vacated sentence satisfies the dictionary definition of “sentence.” Meanwhile, Congress’s use of the indefinite “a” indicates that § 403(b) covers any type of “sentence”—even one that was subsequently vacated. Further, the phrase “has not been” refers to a completed act, and Eleventh Circuit precedent establishes that the verb “imposed,” as used in the criminal sentencing context, refers to the historical fact of pronouncement. So because the district court had pronounced a sentence for Mr. Hernandez before the Act’s enactment, and because “a sentence” was therefore “imposed as of [the] date of such enactment,” the majority held that § 403(a)’s modified stacking rule did not apply to Mr. Hernandez’s case.

Dissenting, Judge Rosenbaum determined that § 403(a)’s modified stacking rule applies to all sentencings that follow the Act's enactment.

Wright: Child Pornography Production Does Not Require The Minor's Active Engagement

In United States v. Wright, No. 22-12338 (Mar. 19, 2024) (Branch, Grant, Carnes), the Court affirmed Mr. Wright’s conviction, pursuant to a plea agreement, for producing child pornography in violation of 18 U.S.C. § 2251(a) and (e). 

Mr. Wright argued that § 2251(a) required proof that the minor in question had volitionally participated in the sexually explicit conduct, but that she could not have done so because she was asleep. And so, the district court violated Rules 11(b)(1)(G) and (b)(3) in accepting Mr. Wright’s guilty plea because the court neither discussed this volition requirement when instructing Mr. Wright on the charge’s nature, nor required the government to make a factual showing of volition. The Court disagreed. Section 2251, it held, did not require the minor to have been actively engaged in sexually explicit conduct. It sufficed that the minor served as the object of Mr. Wright’s sexual desire as he engaged in the conduct.

Gbenedio: Affirming Evidentiary Rulings Underlying "Pill Mill" Convictions

In United States v. Gbenedio, No. 22-12044 (Mar. 6, 2024) (CJ Pryor, Rosenbaum, Abudu), the Court affirmed Mr. Gbenedio’s convictions and sentence for unlawful drug dispensing. The charges were based on allegations that Mr. Gbenedio, a licensed pharmacists, had operated his business as a “pill mill.” The Court addressed six issues:

First, the district court did not abuse its discretion in denying Mr. Gbenedio’s motion to dismiss. Mr. Gbenedio conceded that the indictment alleged facts about him and his pharmacy, the Controlled Substances Act, and all of the fake prescriptions that Mr. Gbenedio allegedly filled. The prosecution had no obligation to explain its legal theory as to why the prescriptions were invalid, or to provide a detailed disclosure of its evidence before the trial. And in any event, Mr. Gbenedio had learned the prosecution’s theory, including the details in a bill of particulars, as recent as one year before trial.

Second, the district court did not abuse its discretion in admitting a DEA agent’s testimony about convictions of employees from a pain clinic that was associated with Mr. Gbenedio’s pharmacy, including testimony that law enforcement learned of the pharmacy while investigating the clinic. The Court rejected argument that the testimony was offered as substantive evidence of Mr. Gbenedio’s guilt. Instead, it determined, the testimony was offered in response to questions about why law enforcement investigated Mr. Gbenedio and what the investigation uncovered. Also, the testimony caused no prejudice under Rule 403, because Mr. Gbenedio’s own counsel first presented similar testimony.

Third, the district court did not abuse its discretion in allowing lay-witness agents to testify that Mr. Gbenedio had the requisite intent, in violation of the rule prohibiting expert witnesses from opining about a defendant’s mental state. On the one hand, the testimony was based on the agents’ experiences as investigators. On the other hand, the testimony was not based on scientific, technical, or other specialize knowledge. And unlike other cases, none of the agents were described to the jury as an expert.

Fourth, the district court did not abuse its discretion in preventing Mr. Gbenedio from using an officer’s testimony to impeach a government witness’s testimony. Because the officer would have confirmed a fact that the witness had already admitted, there was nothing for the officer to contradict under Rule 608(b). Further, the officer’s and the witness’s testimonies would have been cumulative under Rule 403.

Fifth, for these reasons, there was no error—much less a cumulative one.

Sixth, the district court did not clearly err by imposing a $200,000 fine. Mr. Gbenedio’s failure to cooperate with probation’s requests for financial information permitted an inference that Mr. Gbenedio had the ability to pay a fine but was concealing assets. Mr. Gbenedio did not object to parts of the presentence investigation report where probation indication that he failed to establish his inability to pay a fine. Mr. Gbenedio’s argument that his attorney was responsible for providing requested information might have supported an ineffective-assistance-of-counsel claim. But Mr. Gbenedio failed to identify competent evidence of the attorney’s deficient performance.

Boone: Affirming 840-Month Sentence

In United States v. Boone, No. 22-11153 (Apr. 9, 2024) (Jordan, Lagoa, Hull), the Court affirmed Mr. Boone's 840-month sentence.   

Mr. Boone pleaded guilty to using a minor to produce child pornography, and distributing and possessing child pornography, in violation of 18 U.S.C. §§ 2251 and 2252A.  The PSR recommended applying a five-level increase pursuant to U.S.S.G. § 4B1.5(b) because (1) the offense was a covered sex crime and neither § 4B1.1 nor § 4B1.5(a) applied and (2) Mr. Boone “engaged in a pattern of activity involving prohibited sexual conduct.”  As explained in the PSR, the pattern-of-activity enhancement applied because Mr. Boone produced child sexual abuse material on at least two separate occasions.  With a criminal history category of I and a total offense level of 43, Mr. Boone’s advisory guidelines range was life imprisonment.  Because Mr. Boone's statutory maximum sentences were 30 years for the production offense and 20 years for each of the two distribution and possession offenses, and because the statutory maximums were less than the advisory guidelines sentence of life, U.S.S.G. § 5G1.2 provided that the sentences “shall run consecutively,” which in turn yielded a total advisory guidelines sentence of 840 months.  

On appeal, Mr. Boone argued that the district court erred by (1) applying U.S.S.G. § 4B1.5(b)(1)’s pattern-of-activity enhancement based on two or three images all involving the same victim at around the same time, and (2) considering his military service as an aggravating rather than a mitigating factor in determining his sentence.  

The Court disagreed on both fronts.  With regard to the application of U.S.S.G. § 4B1.5(b)(1)’s pattern-of-activity enhancement, the Court found invited error because Mr. Boone--through trial counsel--noted agreement to the enhancement's application.  Additionally, the Court found no procedural error in applying the enhancement.  The Court reiterated that as to § 4B1.5(b)(1), it has held that the enhancement applies if the defendant engaged in prohibited sexual conduct on at least two separate occasions, regardless of whether the crimes were committed against the same victim or different victims.  The Court also found no procedural error in the district court's consideration of Mr. Boone's military service as an aggravating factor, rather than a mitigating one.        

Finally, the Court rejected Mr. Boone's substantive reasonableness challenge.