Eleventh Circuit Court of Appeals - Published Opinions

Friday, December 15, 2017

Johnson: District Courts Must Consider 3553(a) Factors When Denying Motions for Early Termination of Supervised Release

In United States v. Johnson, No. 17-12577 (Dec. 15, 2017) (Tjoflat, Hull, Julie Carnes) (per curiam), the Court concluded that the district court abused its discretion by summarily denying the defendant's motion for early termination of supervised release under 18 U.S.C. 3583(e)(1).

Relying on its 3582(c)(2) precedents, the Court made clear that the district court must consider the relevant 3553(a) factors when denying a 3583(e)(1) motion, and the record must reflect that the district court actually considered those factors in order to permit meaningful appellate review.  In that case, the Court concluded that the record was devoid of any such consideration, because the court summarily denied the motion without explanation.  In the motion, he explained that, after obtaining Johnson relief, he had over-served by 11 years and had successfully re-integrated himself into the community in the year since his release.  The Court rejected the government's speculative argument that the district court implicitly considered the factors because it had presided over the defendant's trial/sentencing more than 20 years earlier.  Nor could any such consideration be inferred from the defendant's 3583(e)(1) motion, because it made no mention of the factors and the government was not ordered to respond.  Accordingly, the Court found an abuse of discretion, and vacated and remanded for further consideration.

Tuesday, December 12, 2017

Nerey: Affirming Medicare Fraud Convictions and 60-Month Sentence Over Various Challenges

In United States v. Nerey, No. 16-13614 (Dec. 12, 2017) (Hull, Jordan, Boggs), the Court affirmed the convictions and sentence in a Medicare fraud case.

First, the Court found the evidence sufficient to support his convictions for conspiracy to defraud the US and by receiving kickbacks.  After recounting the "overwhelming" evidence against him, the Court rejected his argument that the evidence was insufficient because four co-conspirators were cooperating witnesses with the government.  Their testimony, even if not corroborated, was sufficient to support a conviction.  And, in any event, it was corroborated by a substantial paper trail and forensic analysis of bank accounts.

Second, the Court rejected the defendant's argument that the prosecutor engaged in misconduct that shifted the burden of proof.  He identified five instances of alleged misconduct, but only one incident -- where the prosecutor told the jury at closing that the defendant "can't explain" an FBI analyst's chart -- potentially shifted the burden.  However, the court sustained an objection to it, provided multiple curative instructions during closing, and the government presented overwhelming evidence of guilt.

Third, the Court concluded that the district court did not abuse its discretion by denying the defendant's motion to interview a juror.  When the jury returned its verdict, a juror wore a T-shirt stating "American Greed," which was also the name of a TV program relating to white collar crime.  The defendant argued that the shirt, which was promoted and sold on the internet with the idea that you can "show the world that you're no sucker," demonstrated his intent to make a statement and influence his fellow jurors based on an outside influence.  The Court agreed that an interview was not required because the defendant failed to lay out the questions he sought to ask or establish that the shirt was in fact linked with the TV program.  And, even if there was a connection, wearing that shirt did not prove his inability to serve as an impartial juror or follow the court's instructions.

Fourth, the Court upheld the admission of Rule 404(b) evidence.  The Court found that some evidence of the defendant's involvement with other home health care agencies was inextricably intertwined with the evidence in this case -- showing how he became involved in the agencies and why they trusted him -- and thus was not subject to Rule 404(b).  Additional evidence of the defendant's involvement as a patient recruiter was relevant to the broader conspiracy and thus relevant.  And evidence of a phone call where the defendant discussed "breaking [a man's] head" if he was a confidential informant was admissible because it went to his specific intent to engage in the conspiracy.  In any event, the Court found any error harmless in light of the overwhelming evidence of his guilt.

Finally, as to his 60-month sentence, the Court rejected his argument that the court miscalculated the Guidelines by making him responsible for the entire amount of the improper benefit conferred on the home health care agencies, which was $2.3 million.  He argued that he should be responsible only for the $250K he received in kickbacks, not for the amount fraudulently billed for the entire conspiracy.  Applying clear error, the Court rejected that argument because the defendant was significantly involved in the overall conspiracy, and his kickbacks were made possible by the conduct of his co-conspirators, which was reasonably foreseeable.

Tuesday, November 28, 2017

Baptiste: Diversionary Disposition to Withheld Adjudications Get One Criminal History Point under 4A1.1(c), not Two Points Under 4A1.1(b)

In United States v. Baptiste, No. 16-10781 (Nov. 28, 2017) (Rosenbaum, Wilson, Titus), the Court held that the district court incorrectly calculated the defendant's criminal history category and therefore vacated the sentence.

On appeal, the parties framed their arguments around whether a Florida court's imposition of a sentence of "198 days time served," referring at least predominately to the defendant's time in immigration custody, qualified as a "prior sentence of imprisonment" under 4A1.1(b) (warranting two points).  However, the Court found it unnecessary to reach that issue, because circuit precedent established that his conviction warranted only a single point under 4A1.1(c), since adjudication had been withheld.  While there was an exception to that rule for diversionary dispositions, that exception applied only to 4A1.1(c), not 4A1.1(b).  Therefore, he could not have received two points under the latter provision.  And, while he did receive a single point under 4A1.1(c) under the diversionary exception, that single point changed his criminal history category, the Court vacated the sentence and remanded for re-sentencing.

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.