Eleventh Circuit Court of Appeals - Published Opinions
Wednesday, April 16, 2014
In U.S. v. Davila, Nos. 10-15310 & 11-10224 (April15, 2014), on remand from the Supreme Court, see U.S. v. Davila, 133 S.Ct. 2139 (2013) (a court’s improper participation in plea discussions does not by itself demand automatic vacatur of a plea), the Court held that in light of the “full record” Davila had not established prejudice from a Magistrate Judge’s comments encouraging him to plead guilty, and therefore affirmed the conviction. The Court noted that it was reviewing the issue for plain error because Davila did not object to the Magistrate Judge’s comments. The Court noted that it applied the contemporaneous objection rule even in situations where counsel may have no desire to object. Further, TDavila did not object during the months when he represented himself pro se. The Court noted that the Magistrate Judge’s remarks encouraging Davila to plead guilty constituted error, and the error was plain. But the Court found that the error did not affect Davila’s substantial rights. Citing its recent decision on a similar issue in U.S. v. Castro, the Court determined that Davila pled guilty “to shorten the duration of his inevitable sentence.” Davila stated at his change-of-plea hearing that no one pressured him to plead guilty. The Court found some merit in Davila’s claim that his plea was a “desperate gambit” when everyone seemed aligned against him, but ultimately found that he pled guilty “simply because he had negotiated a better deal” than was initially offered. The Court also noted the lapse of time between the Magistrate Judge’s comments and the guilty plea. Though recognizing that the Magistrate Judge’s comments regarding the desirability of a guilty plea were “emphatic and highly improper,” the Court found that this was not enough to show prejudice, in light of the full record.
Tuesday, April 15, 2014
In Osley v. U.S., No. 11-14989 (April 11, 2014), the Court affirmed the denial of a motion under 28 U.S.C. § 2255 that alleged that counsel was ineffective in failing to advise the defendant during plea negotiations that his sex trafficking of a minor offense carried a statutory mandatory minimum. During plea negotiations, Osley was informed that there was no mandatory minimum sentence for his offenses, a statutory maximum of life, and that the prosecution would ask for an 80 months sentence if he pled guilty, which would result in Osley facing as little as 59.5 months with good behavior. In reality, unbeknownst to Osley, because of a recent change in the statute, Osley was subject to 15-year mandatory minimum. Osley declined the plea offer and went to trial. The jury convicted him on all counts. At sentencing, Osley was subject on an advisory Guidelines sentence of 210- 262 months. Based on the nature of the crime and Osley’s lack of remorse, the Court varied upward and imposed a 365 months sentence. Rejecting Osley’s claim that his defense counsel was ineffective for having failed to inform him of the 15-year statutory minimum, the Court pointed out that Osley turned down a plea offer with a much lesser sentence. The Court said it was hard-pressed to accept the claim that Osley would have accepted a 15-year sentence, even had he known about this statutory minimum. The Court further noted that Osley could not establish that the district court would have accepted the lesser sentence, noting that the district court would necessarily have vacated a plea agreement that recommended a sentence below a mandatory minimum. The Court also found that Osley did not establish that his sentence would have been less severe, pointing out that the district court likely would have learned of the egregious circumstances surrounding the crime in the PSI, and therefore imposed as severe a sentence as it did after trial. The Court also rejected the claim that counsel was ineffective in failing to advise Osley that he was subject to a life term of supervised release, pointing out that Osley still went to trial knowing that he faced a life sentence. Finally, the Court rejected the claim that counsel was ineffective in failing to object to “double counting” in the imposition of separate enhancements, one based on a Guideline cross-reference, another based on a Guideline specific characteristic, that accounted for the harm Osley caused. The Court found that one enhancement was for “sexual abuse of the victim,” and the other was for the “aggravated nature of that abuse.” In addition, even if double counting occurred, this would not have changed the result because the district court would have imposed the same sentence even without the alleged double counting.
Tuesday, April 08, 2014
In Rodriguez v. Fla. Dep’t of Corrections, No. 12-10887 (April 7, 2014), the Court held that the State is required to serve on a habeas petitioner the exhibits included in the Appendix referenced in the State’s answer. The Court rejected the argument that the Appendix was not an “attachment” or an “exhibit’ to the Answer. The Court pointed out that the Attorney General referenced the documents “because they were relevant to her argument,” and the Answer therefore depends on the Appendix’s referenced documents to support and lend meaning to the arguments it presents.
Monday, April 07, 2014
In U.S. v. Grzybowicz, No. 12-13749 (April 4, 2014), the Court affirmed two child pornography convictions and reversed a third one. The Court rejected Grzybowicz’s challenge to the sufficiency of the evidence for producing and possessing child pornography in violation of 18 U.S.C. § 2252A, noting that it would have been utterly contrary to the evidence for the jury to have found that the photos at issue were not a “lascivious exhibition of the genitals or pubic area.” The Court, however, found merit in Grzybowicz’s challenge to the sufficiency of the distribution count. The Court noted that Grzybowicz sent images from his cellphone to his computer. Thus “there is no evidence that Grzybowicz sent the images of child pornography to anyone other than himself.” The images on the computer were not stored in a shared folder accessible to other and were not uploaded to any publicly accessible website. Noting that “[w]e do not commonly speak of delivering to ourselves things that we already have,” the Court distinguished cases involving allowing access to images on a computer through a peer-to-peer program.
In U.S. v. Travis, No. 13-10400 (April 4, 2014), relying on Sykes v. U.S., held that vehicle flight in violation of Fla. Stat. § 316.1935(1) constitutes a crime of violence for purposes of the career offender sentencing guideline. The Florida statute, like the one at issue in Sykes, required nothing more than using a vehicle to flee after an officer has ordered the driver to stop. The Court held that even though § 316.1935(1) violations do not involve high speeds or other reckless conduct, they are an inherently risky enterprise because they can end in violent confrontations between the offender and police. They therefore qualify as offenses presenting “a serious potential risk of physical injury to another.”
In Brown v. U.S., Nos. 11-15149 & 12-10293 (April 7, 2014), the Court held that entry of final judgment on a motion to vacate a sentence under 28 U.S.C. § 2255 falls outside the grant of statutory authority to Magistrate Judges delegated in 28 U.S.C. § 636(c). Declining to reach the issue whether Article III of the Constitution prohibits a Magistrate Judge from entering final judgment on a § 2255 motion, the Court analyzed at length the history of the magistrate system and Supreme Court caselaw regarding Magistrate Judge authority. The Court noted that Magistrate Judges are appointed by District Courts, and would not be expected to evaluate the District Courts’ conduct at trial in a § 2255 motion. The Court also noted that it was constitutionally troublesome for Magistrate Judges to exercise a Judicial Power reserved for Article III courts. The Court therefore vacated the Magistrate Judge’s order denying Brown’s § 2255 motion and, expressing no views on the merits of Brown’s underlying claims for § 2255 relief, remanded the case to the District Court for disposition.
In U.S. v. Feliciano, No. 12-15341 (April 3, 2014), the Court agreed with the government’s concession that the evidence was insufficient to support a conviction for using a firearm during a bank robbery, in view of the lack of evidence that Feliciano possessed a firearm during the robbery – but affirmed convictions on all other counts. The Court rejected Feliciano’s challenge to the credibility of the cooperating witnesses who testified against him. Though noting that there was a valid basis for these credibility challenges, the Court concluded that the issue of credibility was ultimately for the jury to decide. The Court agreed with Feliciano that the district court improperly denied him his request for expert assistance in interpreting an MRI and establishing that his back injury made it impossible for him to have been the bank robber who jumped over a teller window. But the Court found that the denial of this assistance did not have a substantial and injurious effect on the jury’s verdict, pointing out that a doctor testified at trial that Feliciano was not physically capable of jumping over the teller window. The Court rejected Feliciano’s claim that the district court erred in allowing a portion of a phone call between him and his brother to be played during the government’s rebuttal case, without the brother being on the stand, after the brother had testified at trial. Feliciano argued that the call should not have been admitted as substantive evidence, and without the brother being present. The Court noted that Rule 613(b) does not specify a particular sequence for the admission of a prior inconsistent statement. Further, the statement was actually exculpatory, so was not substantive evidence against Feliciano. The Court found no reversible error in the prosecutor’s statement in closing argument that the jury had not seen recent MRIs – knowing that the district court had denied Feliciano’s request for expert assistance in receiving a recent MRI. The Court noted, however, that “[t]his conduct does not meet the standard we expect of United States prosecutors.” [Dissenting from this portion of the decision, Judge Pryor faulted the majority for “nitpick[ing]” the prosecutor’s closing argument.
Friday, March 21, 2014
In Jones v. GDCP Warden, No. 11-14774 (March 20, 2014), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1979 murder, findingthat Jones could not satisfy the “prejudice” prong of his ineffective assistance of counsel claim. Jones claimed that his counsel was ineffective for failing to introduce at the penalty phase evidence of his childhood and mental health. The Court pointed out that had counsel gone down this route, the State could have introduced strong aggravating evidence, including Jones’ “damning record from prison and the military.” The Court found the state habeas court’s rejection of the opinions of Jones’ experts to be reasonable, given their lack of reliability.
Tuesday, March 18, 2014
In U.S. v. Salgado, No. 12-15961 (March 14, 2014), the Court reversed a sentence because the district court, in calculating the offense level for a money laundering offense, “mistakenly considered the defendant’s role in the drug conspiracy that generated the dirty money.” Because Salgado was convicted of heroin trafficking and money laundering, his sentence was calculated based on the Guidelines’ grouping rules., which indicated that his sentence should be based on the money laundering guidelines. The Guidelines also provide that when a sentence is calculated based on the money laundering Guidelines, USSG § 2S1.1, other sentence adjustments are based on the Guidelines for that offense, and not for the underlying offense from which the funds were laundered. Despite this instruction, the district court increased the offense level for money laundering based on Salgado’s significant role in the drug trafficking offense. The Court rejected the government’s argument that failing to take account of the fact that a defendant played a significant role in a drug offense when sentencing for money laundering would result in defendants convicted of both crimes receiving lighter sentences than defendants convicted only of the drug offense. The Court pointed out that this was incorrect, because the grouping rules require courts to use the highest offense level of the counts in the group after factoring in sentence adjustments for each count. The Court also rejected the argument that sentencing courts are required to consider “all relevant conduct.” The Court pointed out that the Relevant Conduct Guideline begins with the words “unless otherwise specified.” The Application note with regard to money laundering “does specify otherwise.”
Wednesday, March 12, 2014
In Terrell v. GDCP Warden, No. 11-13660 (March 11, 2014), the Court affirmed the denial of habeas relief to a Georgia death row inmate convicted of a 1992 murder. The Court rejected the argument that Terrell suffered prejudice as a result of his lawyer’s decision not to obtain a forensic pathologist, who would have testified that the victim was already dead when subjected to mutilation. The Court found that this evidence would have supported the prosecution’s view that the murder was done with malice and anger. The Court also found no ineffective assistance in his lawyer’s failure to challenge an armed robbery aggravating factor. Terrell’s lawyer focused on a residual doubt theory, rather than rebutting the State’s theory regarding armed robbery. The Court found that this choice did not change the outcome of the sentencing.