Eleventh Circuit Court of Appeals - Published Opinions

Thursday, April 28, 2016

Jimenez-Antunez: Defendant can fire retained counsel without showing "good cause"

In U.S. v. Jimenez-Antunez, No. 15-10224 (April 25, 2016), the Court held that a defendant need not show “good cause” to dismiss his retained counsel and replace him with appointed counsel. The Court found that the district court erroneously denied defense counsel’s motion to withdraw as counsel based on its finding that the defendant had been “afforded effective counsel.” This was the wrong inquiry. The Court explained that the Sixth Amendment guarantees a defendant the right to “counsel of choice,” and this includes the right to hire “and fire” retained counsel. A motion to discharge retained counsel should be granted unless denial is compelled by purposes inherent in the fair, efficient, and orderly administration of justice. The Court vacated the judgment, and remanded the case because it could not determine whether the district court would have granted the motion to withdraw had it applied the correct standard.

Monday, April 25, 2016

Warren: Guideline enhancement requires only one obliterated serial number

In U.S. v. Warren, No. 15-12519 (April 21, 2016), the Court affirmed the imposition of a four-level enhancement under U.S.S.G. § 2K2.1(b)(4)(B), for possession of a firearm that had an altered or obliterated number. When Warren was arrested the serial number on the gun’s frame was intact, while the serial number on its slide had been altered or obliterated. The Court held that the enhancement applied even when only one of two serial numbers had been altered or obliterated. The Court relied on the plain language of the Guideline, which only required that the firearm had “an” altered or obliterated serial number.

Thursday, April 21, 2016

In Re Robinson: Johnson applies retroactively in the Eleventh Circuit

In In Re: Troy Robinson, No. 16-11304-D (April 21, 2016), the Court acknowledged that the Supreme Court’s recent decision in Welch v. U.S. held that Johnson v. U.S., which held that the residual clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague, applies retroactively. This overruled Eleventh Circuit precedent on this point. However, because Robinson’s prior convictions for armed robbery, and aggravated battery with a firearm, still qualified as “violent felony” predicates under the ACCA “elements” clause, Robinson’s sentence remained valid even without ACCA’s residual clause. Consequently, the Court denied Robinson’s application for leave to file a second or successive § 2255 motion. [Martin, J., concurring, listed all cases in which the Eleventh Circuit had recently denied an application for leave to file a second or successive § 2255 motion based on Johnson, in part for the sake of Federal Public Defender offices monitoring these cases.]

Wednesday, April 13, 2016

Croteau: 56-month sentence for filing fraudulent tax returns

In U.S. v. Croteau, No. 15-11720 (April 11, 2016), the Court affirmed convictions for making fraudulent claims on tax returns, and corruptly interfering with the administration of internal revenue laws. Rejecting a sufficiency of the evidence, the Court noted that Croteau began filing his tax returns on his own based on theories espouses by the tax-protesting group he had joined, in a method inconsistent with how he had always filed his taxes before. In addition, the IRS warned several times that there was no basis in law for his filings. Further, the jury, once Croteau testified, was entitled to disbelieve his testimony and conclude that the opposite “is true.” Finally, Croteau got the benefit of a “good faith defense” jury instruction. Turning to sentencing, the Court rejected Croteau’s challenge to the reasonableness of his 56-month sentence.

Green: Conclusory assertions about exculpatory testimony insufficient for severance

In U.S. v. Green, No. 15-10270 (April 7, 2016), the Court affirmed the convictions of two-codefendants for operating a business that unlawfully sold oxycodone to fake patients. The Court rejected a challenge to the sufficiency of the evidence. Reviewing the arguments in part for “plain error” because the specific challenge was not raised in the district court, the Court noted the fact that the customers paid in cash, that the defendants had signing authority over the bank accounts, that 90% of the prescriptions were for oxycodone. From such facts, the jury could reasonably find that the defendants laundered the proceeds of illegal drug distribution. The Court also found no error in the district court’s refusal to sever one defendant from the other. Defendant Hebble claimed that co-defendant Green would have exonerated her, had they been tried separately. But Hebble failed to proffer sufficiently specific exculpatory testimony to warrant severance. “Conclusory assertions” that Green would impeach government witnesses did not suffice.

Tuesday, April 05, 2016

Marroquin-Medina: Percentage-based approach is not mandated for 3582 reductions

In U.S. v. Marroquin-Medina, No. 15-12322 (April 1, 2016), the Court held that for offenders who received a reduced sentence at their original sentencing based on their substantial assistance to the government, and now seek a sentence reduction pursuant to a Guideline amendment, the Guidelines’ “percentage-based approach” to sentence reductions is not the only permissible way a district court may amend the sentence under 18 U.S.C. § 3582(b). The defendant received a sentence reduction for substantial assistance at his original sentence, for substantial assistance. Thereafter, Amendment 782 lowered his Guideline range. In response to his § 3582(b) sentence-reduction motion, the government claimed that the district court could impose a new sentence no lower than the same percentage reduction off the original guideline range. The defendant claimed that the district court should reduce the Guideline offense level by the same number of levels it reduced it at the original sentencing. The district court opted for the government’s view. Reversing, the Court noted that the Guidelines do not mandate a particular approach. A Guideline commentary uses the percentage-based approach as an example, but this not the only permissible method. The Court therefore reversed the district court, though without expressing any opinion as to the appropriate final amended sentence.

Griffin: No savings clause for defendant whose total length of detention was valid

In Griffin v. Warden, FCC Coleman-Low, No. 15-11335 (April 1, 2016), the Court held that despite a Begay error in counting his previous conviction for the Florida crime of carrying a concealed firearm as a qualifying offense for purposes of the armed career criminal act (ACCA), the defendant was not entitled to habeas relief under the “savings clause” of 28 U.S.C. § 2255(e), that applied to inmates who, having already challenged their judgment under § 2255, now sought relief under § 2241. The Court noted that Bryant v. Warden, FCC Coleman-Medium requires a petitioner to establish that his current detention exceeds the statutory maximum authorized by Congress. The Court interpreted Bryant to require that a petitioner show not just that one of his concurrent sentences was illegal, but that his overall detention is illegal – which Brown failed to do. “Put simply, there is no fundamental defect when a prisoner is not serving more time, in total, than authorized by law.” Here, while Brown’s 188-month ACCA sentence was illegal, his 188-month detention was authorized by the statutory maxima for his drug crimes – life. Further, a Guidelines error does not trigger the savings clause.

Thomas: Wife's consent to search of a shared computer validates search

In U.S. v. Thomas, No. 14-14680 (April 1, 2016), the Court held that a wife’s consent to the police’s warrantless search or a computer she shared with her husband made the search reasonable under the Fourth Amendment. The Court noted that the computer was easily accessible in an unlocked room in the shared residence, the wife had access to the computer and used it on the morning of the search (and discovered images of child pornography, and called the police), and shared the password to access the computer. The Court found it “particularly significant” that the defendant did not protect his Internet history by maintaining a separate login name and password or by encrypting his files. The Court declined to reach whether the defendant’s objection to the search might have mattered, under Georgia v. Randolph, finding that the search here occurred after the wife’s consent and before the husband awoke and objected to the search. The Court held that even if Georgia v. Randolph were extended to require police to awake the sleeping defendant before searching, the search would still have been reasonable under the “independent source doctrine.” Based only on the wife’s telling police about her discovery of child pornography, and the websites visible on the computer, there was a fair probability that child pornography would be found on the computer. The police therefore would have sought a search warrant of the computer regardless of the results of their initial warrantless search of the computer.
In Westmoreland v. Warden, No. 14-15738 (March 30, 2016), the Court held that the filing of a Georgia “extraordinary motion” for a new trial is the type of State post-conviction application that tolls the one-year statute of limitation for the filing of a habeas petition. In the trial court, the State of Georgia refused to disclose that Westmoreland had filed an “extraordinary motion,” but did so on appeal. With the tolling resulting from the filing his extraordinary motion, Westmoreland’s habeas petition was timely. The Court remanded for the district court to consider whether Westmoreland might have failed to exhaust state remedies.

Tuesday, March 29, 2016

Mays: Johnson and Descamps apply retroactively to first habeas petition

In Mays v. U.S., No. 14-13477 (March 29, 2016), the Court held that Descamps and Johnson apply retroactively to a first-habeas petition defendant sentenced to a higher mandatory sentence based on prior convictions under the Armed Career Criminal Act (ACCA), and therefore ordered resentencing. One of Mays’ prior qualifying convictions was an Alabama third-degree burglary. In U.S. v. Howard, the Court had already held, post-Descamps, that this Alabama burglary did not qualify under ACCA’s enumerated clause. Mays was sentenced pre-Descamps. The Court found that Descamps did not announce a new rule, “but was simply reaffirming” an existing approach. Thus, under Teague v. Lane, Descamps applied retroactively, and the Alabama burglary did not qualify under the enumerated clause. Turning to whether the Alabama burglary qualified under ACCA’s residucal clause, the Court held that Johnson, which held the residual clause to be unconstitutionally vague, applied retroactively because it was a new substantive rule of constitutional law. Citing Schriro v. Summerlin, the Court noted that new substantive rules include decisions that “place particular conduct or persons covered by the statute beyond the State’s power to punish.” The Court recognized that in In re Rivero, it had held that Johnson did not apply retroactively to a defendant who filed a second and successive habeas petition. But Mays was on his first habeas petition, and therefore does not require a ruling by the Supreme Court that Johnson is retroactive. Further, Rivero found that Johnson announced a new substantive rule of constitutional law. Accordingly, Johnson was retroactively applicable to a first habeas petition.

Taylor: "Production" and "Use" of Devices are distinct

In U.S. v. Taylor, No. 14-13288 (March 28, 2016), the Court rejected the argument that the imposition of the mandatory two-year sentence for aggravated identity theft in violation of 18 U.S.C. 1028A did not preclude the imposition of an additional two-level enhancement under U.S.S.G. § 2B1.1(b)(11)(B)(i) for the “production” of an authorized access device. The Court explained that while § 2B1.6 of the Guidelines precluded the imposition of an additional Guideline enhancement for the “use” of a means of identification, this double-counting preclusion did not apply to the “production” of such a device. The Court reasoned that producing unauthorized devices creates more opportunities for prohibited conduct than mere use of a pre-existing device. Taylor’s scheme involved submitting false identities to banks in order to cause them to produce credit cards. The Court held that, in so doing, Taylor “willfully caused” the production of the credit cards, and was accountable for their “production” even though the cards were manufactured by the banks, an innocent third party.

Thursday, March 24, 2016

Baston: Foreign Commerce power to apply criminal law extraterritorially is as broad as Interstate Commerce power

In U.S. v. Baston, No. 14-14444 (March 24, 2016), the Court affirmed the convictions and sentence of a defendant convicted of sex trafficking by force, and money laundering the proceeds of this sex trafficking, and, on a government cross-appeal, reversed the district court’s decision not to award restitution to an Australian sex-trafficking victim. On plain error review, the Court found no error in the district court’s response to the jury’s supplemental question during deliberations, that asked whether it would be illegal to transfer funds if prostitution is legal in Australia and money was made there by those means. The Court found that this question asked about money laundering, not sex trafficking. The district court’s answer must have been satisfactory, because the jury asked no further questions after receiving the supplemental instruction. The Court also rejected Baston’s challenge to the sufficiency of the evidence regarding whether his conduct was “in or affecting” interstate commerce. Reviewing the argument for plain error because Baston failed to raise this specific challenge in the district court, the Court found that even if Baston trafficked this victim only in Florida, his use of phones, the Internet, hotels and buses facilitated his trafficking, so his conduct was “in commerce.” Turning to the government’s cross-appeal, the Court agreed with the government that the defendant had to pay restitution to a victim even if the prostitution occurred overseas. The Court noted that in U.S. v. Bellaizac-Hurtado, it had held that the extraterritorial application of a criminal law exceeded Congress’ authority under the Offences Clause of Article I of the Constitution. But the Court noted that it might have reached a different result in Bellaizac-Hurtado if the government had relied on Article I’s Foreign Commerce Clause. “[T]he Foreign Commerce Clause provides Congress a broad power.” The Foreign Commerce Clause has at least “the same scope as the Interstate Commerce Clause.” “In other words, Congress’s power under the Foreign Commerce Clause includes at least the power . . . to regulate activities that have a ‘substantial effect’ on commerce between the United States and other countries.” Here, Congress had a “rational basis” to conclude that sex trafficking by force “even when it occurs exclusively overseas” is part of an economic class of activities that have a “substantial effect” on commerce “between the United States and other countries.” Accordingly, the extraterritorial application of the sex trafficking statute is a constitutional exercise of Congress’s authority under the Foreign Commerce Clause.