Eleventh Circuit Court of Appeals - Published Opinions

Monday, November 13, 2017

Alicea: New York Certificate of Disposition Sufficient to Prove Prior Conviction

In United States v. Alicea, No. 16-17545 (Nov. 9, 2017) (Ed Carnes, Tjoflat, William Pryor) (per curiam), the Court upheld the calculation of the defendant's guideline range.

First, agreeing with two other circuits, the Court held that a New York certificate of disposition was sufficient evidence to establish that the defendant had a prior serious drug offense.  The Court rejected his assertion that the certificate was insufficient because it was signed by an unidentified court clerk and mistakenly transposed the numbers of his birthday.

Second, and for purposes of calculating his criminal history score, the Court rejected his assertion that the government failed to provide reliable evidence to prove his three New York drug convictions.  The Court already addressed the argument with regard to one of the convictions.  With regard to the other two, it was undisputed that both convictions bore an identification number identical to Alicea's.  And while the arrests in those cases were made under different names, those names were known aliases of the defendant.  The Court alternatively concluded that any error was harmless, because his criminal history score would have remained the same in light of other convictions not challenged on appeal.

Tuesday, November 07, 2017

Davis: Alabama Sexual Abuse by Forcible Compulsion Does Not Satisfy ACCA's Elements Clause

In United States v. Davis, No. 16-10789 (Nov. 7, 2017) (Ed Carnes, Rosenbaum, Higginbotham), the Court "reluctantly" held that the Alabama offense of first degree sexual abuse by forcible compulsion did not satisfy the ACCA's elements clause.

The Court first found that the Alabama first-degree sexual abuse statute was divisible on its face, enumerating two separate crimes: sexual abuse by forcible compulsion, and sexual abuse of a person incapable of consent.  The defendant's plea colloquy revealed that he had been convicted of the former.  The Court, however, rejected the defendant's further argument that sexual abuse by forcible compulsion was itself divisible: although there are three ways that a defendant could engage in forcible compulsion, those were means, not elements, because the jury did not need to agree on which the defendant committed.'

Surveying Alabama law, the Court then concluded that sexual abuse by forcible compulsion did not necessary require the use of violent force under Curtis Johnson.  That was so because case law in Alabama made clear that one could commit the offense merely where an authority figure implies a threat of disciplinary action against a child, and not all such disciplinary actions involve violent force.  The Court noted that, although the defendant did not cite the key Alabama decision in the district court, he had sufficiently preserved his objection to the prior conviction, and a party does not forfeit an issue merely by failing to cite a specific case supporting that issue.  In a final footnote, the Court noted that its decision was consistent with the en banc decision in Vail-Bailon because, in that case, the defendant was relying on far-fetched non-violent hypotheticals that had never been prosecuted, whereas Alabama did actually prosecute sexual abuse involving authority figures threatening children.  Also, unlike this case, there was no state supreme court decision indicating that the state would apply to the non-violent scenarios.

Judge Rosenbaum concurred with the exception of the majority's final footnote discuss Vail-Bailon.  She reiterated her disagreement that the non-violent scenarios posited in Vail-Bailon were far-fetched, and that there was no state supreme court decision in that case supporting such an application.

Monday, November 06, 2017

Burgess: Court May Not Sua Sponte Invoke 2255-Waiver Provision Where Government Fails To Do So

In Burgess v. United States, No. 15-12045 (Nov. 6, 2017) (Rosenbaum, Julie Carnes, Schlesinger), the Court held that a district court is not permitted to sua sponte invoke a 2255-waiver provision in a plea agreement to dismiss a 2255 motion where the government fails to raise that defense in its response.  The court limited its holding to collateral-waiver provisions. 

Judge Carnes concurred, agreeing with the majority's conclusion, but emphasizing the narrowness of the opinion.  She pointed out that nothing prevents a district court from sua sponte directing the parties to address the waiver issue before the government responds.  And the government may seek to amend its response to belatedly add a waiver defense, subject to the court's discretion.

Wednesday, November 01, 2017

Longoria: Substantive and Conspiracy Drug Distribution Convictions Can Occur on Separate Occasions for ACCA Purposes

In United States v. Longoria, No. 16-17645 (Nov. 1, 2017) (Tjoflat, Marcus, Jordan) (per curiam), the Court upheld the defendant's ACCA sentence.

The Court found that the defendant's serious drug convictions occurred on separate occasions.  To reach that conclusion, the Court held that a drug distribution offense may occur on a separate occasion from an overlapping conspiracy to distribute that drug.  In that case, the Court relied on Shepard documents to find that the substantive and conspiracy convictions were clearly defined and occurred on separate occasions.

The defendant's remaining arguments were foreclosed by binding precedent.  Specifically, the defendant argued that the dates of his prior convictions were non-elemental facts that could not be considered under Shepard, but that argument was foreclosed by Weeks.  Second, and relatedly, the Court held that there was no Fifth or Sixth Amendment violation by determining that the convictions occurred on separate occasions.  Third, and finally, the binding precedent foreclosed any argument that his 922(g) conviction was unconstitutional under the Commerce Clause.

Monday, October 30, 2017

Mathews: Failed Drug Test Does not Categorically Preclude Reduction for Acceptance of Responsibility

In United States v. Mathews, No. 16-11191 (Oct. 30, 2017) (Hull, Jordan, Gilman), the Court considered three Guideline calculation issues, and it ruled in the defendant's favor on one.

First, the Court upheld the application of the enhancement in 2J1.2(b)(3) for altering a substantial number of records, or, alternatively, altering essential or especially probative records.  The Court upheld the increase under the latter option, because the defendant altered a medical patient's records from the day of his death, which was essential to and obstructed the VA's investigation.  The Court found irrelevant  the defendant's subjective intent as to why he altered the records; it mattered only that he selected those records to destroy or alter.

Second, the Court upheld the application of the vulnerable-victim enhancement in 3A1.1(b)(1).  The victim was 76 years old and recovering from heart surgery, and it was irrelevant whether the defendant "targeted" the patient based on those infirmities; it required only that the defendant knew or should have known that the victim was vulnerable.  The Court further rejected the defendant's argument that the only victim harmed by his computer and record-related convictions was the United States, not the patient.  It emphasized that a person can qualify as a victim even if the defendant's conduct exposes that person to a risk of harm that was reasonable foreseeable.  The defendant's conduct met that standard and qualified as relevant conduct.

Third, the Court found that the district court erred by believing that a failed drug test precluded a reduction for acceptance of responsibility as a matter of law.   The Court noted that the Guidelines did not include any conduct that categorically precludes a defendant from receiving a reduction.  The Court could not find the error harmless because it reduced the defendant's guideline range.  Accordingly, it vacated the sentence and remanded for the limited purpose of allowing the court to determine whether a reduction was warranted.

Monday, October 23, 2017

Dixon: Florida Battery by Strangulation is a Crime of Violence under the Elements Clause

In United States v. Dixon, No. 17-10503 (Oct. 23, 2017) (Marcus, Jordan, Rosenbaum), the Court, without holding oral argument, held that Florida battery by strangulation under Fla. Stat. 784.041(2)(a) was a crime of violence under the elements clause.

This offense prohibits intentionally impeding the victim's normal breathing/blood circulation by applying pressure on the throat or neck or by blocking the victim's nose or mouth, and creating a risk of great bodily harm.  The Court found that, based on the plain language of the statute, this offense could not be committed without violent force -- that is, force capable of causing physical pain or injury.  The Court found that several non-violent hypothetical violations offered by the defendant -- including temporarily placing a pillow over a spouse's nose/mouth, removing a spouse's sleep apnea mask, or sitting on a spouse's chest -- were either "implausible" or would not actually violate the statute.  Other hypotheticals offered -- such as holding a spouse's head under water by applying pressure, and sitting in a spouse's chest and placing a hand over their mouth -- would require violent force.

Friday, October 06, 2017

George: Plain Error for Failing to Permit Allocution Before Imposing Sentence

In United States v. George, No. 16-14812 (Oct. 6, 2017) (Hull, Jordan, Gilman), the Court concluded that the district court did not clearly err by applying the firearm enhancement in USSG 2D1.1(b)(1) and premises enhancement in 2D1.1(b)(12), but did commit plain error by not allowing the defendant to allocute before it pronounced sentence.

As for 2D1.1(b)(1), the Court concluded that the enhancement was proper, because the defendant possessed a loaded firearm behind the reception area of a salon used as a front for his criminal activities.  Even though the criminal activities occurred in the back room of the salon, the government proved that the firearm was "present" at the location where he ran his criminal activities, and the defendant did not meet his burden to prove that it was "clearly improbable" that the gun was connected to the criminal activities. 

As for 2D1.1(b)(12), the Court applied a totality of the circumstances test adopted by other circuits to determine whether the defendant "maintained" the premises for drug trafficking.  The evidence supported the conclusion that a "primary purpose" of both the salon and an apartment was for drug distribution.  Thus, the Court upheld the enhancement.

As for allocution, the Court concluded that, merely by asking if there was "anything further from the other side," the district court did not fulfill its Rule 32 obligation to address the defendant personally in order to give him a chance to speak.  Relying on its recent decision in Doyle, the court found the error plain, observing that Rule 32 required the court to give the defendant a chance to speak before (not after already) imposing sentence, and the Court presumed prejudice under Doyle because he was not subject to a mandatory minimum sentence and thus could have varied downward.  The Court distinguished a former Fifth Circuit decision upon which the government relied.  Accordingly, the Court vacated the sentence and remanded for allocution only.