Dupree v. Warden: Recommending Stricter Review of Unobjected to R&R Issue

In Dupree v. Warden, No. 11-12888 (May 7, 2013),


the Court vacated the denial of habeas relief because the district court failed to address all issues raised in a habeas petition, in violation of Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc) (district court must address all issues raised in a habeas petition, regardless of whether relief is granted or denied).

The Court noted, however, that the issue that the district court had failed to address was also not addressed by a Magistrate Judge in his Report and Recommendation, and that the habeas petitioner had failed to object in the district court to the Magistrate Judge’s failure to address this issue. The Court noted that in the Eleventh Circuit, the unobjected-to legal issue is nonetheless reviewed de novo by the Court of Appeals. The Court added a lengthy “recommendation,” urging the full court en banc, or by administrative rule-making, to change its standard of review. The Court noted that in a majority of Circuits a party’s failure to object to a Report and Recommendation results in waiver of that issue, with plain error review only when in the “interests of justice.” The Court advocated adoption of this stricter rule, noting that it prevents “sandbagging” the district court.

Hamilton: Crack Cocaine offender bears burden to show whether cocaine amount makes him eligible for reduction

In U.S. v. Hamilton, No. 12-10899 (April 23, 2013), the Court reversed the denial of a crack cocaine offender’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).


Based on Hamilton’s “relevant conduct” and the “reasonably foreseeable acts of others in furtherance of jointly undertaken criminal activity,” the district court at the initial sentencing held Hamilton accountable for “at least 1.5 kilograms” of crack cocaine. This established a base offense level of 38.

As a result of subsequent retroactive Guideline amendments, in order for a crack cocaine offense to subject a person to level 38, the offense would have to involve 8.4 kilograms of cocaine.

It was unclear whether, after the Guideline amendments, Hamilton was entitled to a Guideline sentence reduction, because an offense involving “at least 1.5 kilograms” of crack cocaine can involve more, or less, than 8.4 kilograms.

The Court therefore instructed the district court on remand to determine whether Hamilton was now accountable for 8.4 kilograms of crack cocaine. The Court instructed the district court not to consider any new evidence, and not to enter any finding inconsistent with an original finding. If the district court could not determine Hamilton’s drug quantity with “sufficient specificity,” the court should not lower the sentence, because Hamilton, as the § 3582(c)(2) movant, bore the burden of showing that he would have received a lower sentence under a lower Guidelines range.

Williams: Nonexistent precedent precludes habeas relief

In Williams v. Warden, No. 11-13306 (Apr. 11, 2013) (2-1), the Court held that the “savings clause” of 28 U.S.C. § 2255 did not authorize Williams to bring a habeas petition under 28 U.S.C. § 2241 challenging whether three violent felony predicate convictions supported his sentence enhancement under the Armed Career Criminal Act (ACCA). The Court reasoned that because Williams could and did raise this issue on direct appeal and in his first § 2255 motion, the savings clause does not apply.

The Court pointed out that § 2255's savings clause provides that once a court has denied a petitioner relief, a habeas remedy is not available unless the remedy was “inadequate or ineffective” to test his claim. This erects a “jurisdictional” barrier against habeas remedies.

The Court noted that the savings clause had to interpreted in a way that did not “swallow up” the limitations on second § 2255 motions. “If possible, we try to avoid interpreting a statute in such a way that any part of it becomes mere surplusage.”

The Court held that for a challenge to a sentence to pass muster under the savings clause, it must be based on a retroactively applicable Supreme Court decision, that overturned circuit precedent that had squarely foreclosed a claim.



Williams could not satisfy this test, because at the time of his initial motion, no Circuit precedent foreclosed his sentencing challenge, which relied on Begay, a Supreme Court decision decided after his appeal and his initial § 2255 motion.



[Dissenting. Judge Martin wrote that “prexistence or nonexistence of circuit precedent has no bearing” on whether a defendant is eligible for habeas relief. Martin reasoned that if Williams was never a career criminal in light of Begay, then his continued incarceration violates due process.]

Hall: Guideline definition of "Crime of Violence" is Binding

In U.S. v. Hall, No. 12-11343 (April 16, 2013), the Court held that Hall’s prior conviction for possession of an unregistered sawed-off shotgun in violation qualified as a "crime of violence" for purposes of the USSG § 2K2.1(a)(4)(A) enhancement. The Court pointed out that the commentary to the Guidelines that defines a "crime of violence" explicitly states that unlawfully possessing a sawed-off rifle is a crime of violence. The Court noted that this Guideline commentary is "binding." Consequently, the Court rejected Hall’s arguments, based on caselaw interpreting a "violent felony" under the Armed Career Criminal Act (ACCA), that possession of a sawed-off shotgun should not qualify as a "crime of violence." These arguments were unavailing in the face of the binding Guideline commentary.

Hinds: Post-FSA Sentencing qualifies for FSA lower minimums

In U.S. v. Hinds, No. 11-16048 (April 9, 2013), the Court held that the Fair Sentencing Act (FSA)’s lower mandatory minimum term applied to a defendant who was resentenced after the FSA took effect. The Court noted that it had not addressed whether the FSA applied to a defendant who was resentenced (as opposed to originally sentenced) post-FSA. Finding "no meaningful difference between an initial sentence and a resentencing post-Act," the Court held that the FSA applied to Hinds, and vacated Hinds’ sentence and remanded for resentencing.

Melson: Habeas Petitioner failed to Establish Reasonable Diligence

In Melson v. Comm’r, Ala. Dep’t of Corrections, No. 11-13512 (April 4, 2013), the Court affirmed the dismissal as time-barred of Melson’s federal habeas petition. The Court found no need to address whether the AEDPA one-year limitations period should equitably tolled based on Melson’s counsel’s failure to timely file a state post-conviction motion, because Melson’s himself repeatedly failed to pursue his federal habeas proceeding with reasonable diligence.

Overstreet: Wife's Murder is valid basis for upward variance to 420 months

In U.S. v. Overstreet, No. 11-16031 (March 28, 2013), the Court affirmed a 420-month sentence imposed on a defendant convicted of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g), finding that the variance above the Guideline range of 180-188 months was supported by the district court’s finding, by a preponderance of the evidence, that the defendant murdered his wife.




The Court noted the uncontradicted evidence pointing to Overstreet’s responsibility for his wife’s death. Although the murder was not connected to the offense of conviction, the district court had authority to consider it under its § 3553(a) discretion. In addition, the Court noted Overstreet’s “exceptionally violent and heinous” past criminal history, and that he committed the murder and the unlawful gun possession while on parole.

Coronado-Cura: Simple Vehicle Flight is Aggravated Felony

In U.S. v. Coronado-Cura, No. 12-12344 (March 26, 2013), the Court held that “simple vehicle flight” in violation of Fla. Stat. § 316.1935(2) qualifies as an “aggravated felony” for purposes of an 8-level Guideline sentence enhancement for a defendant convicted of illegally entering the United States.




The Court noted that vehicle flights create a risk of car crashes, and that the Guidelines definition of risk include the risk that force will be used against the person or property of another (regardless of whether that force comes directly from the fleeing offender or the pursuing police officers). The Court also noted its precedent in Petite which had held that simple vehicle flight qualified as a “violent felony” for purposes of the Armed Career Criminal Act.

Cruz: Target Cashier Abused Her Trust

In U.S. v. Cruz, No. 11-12568 (March 26, 2013), the Court, for an offense involving aggravated identity theft, upheld (1) the imposition of a sentence enhancement under U.S.S.G. § 2B1.10(b)(1) for the use of device-making equipment, and (2) a sentence enhancement under § 3B1.3 for abuse-of-trust.

The offense involved the fraudulent use of credit card numbers obtained through a waitress at a restaurant who used a credit card skimmer. Cruz claimed that he should not be subject to the § 2B1.10(b)(1) use-of-device-making-equipment enhancement, because another Guideline provided that this enhancement was inapplicable when a defendant, like Cruz, was already subject to the mandatory term of imprisonment under 18 U.S.C. § 1028A for aggravated identity theft. Rejecting this argument, the Court held that the Guideline only precluded an additional enhancement based on “the transfer, possession, or use of a means of identification,” not based on the use of device-making equipment.


The Court also rejected the argument of a cashier at a Target store that her position as a mere cashier did not create the kind of trust that triggered an “abuse of trust” sentence enhancement. The Court found that the cashier abused the authority of her position at Target to help co-conspirators use credit cards without authorization.

Carillo-Ayala: Firearms sales make drug trafficker safety-valve ineligible

In U.S. v. Carillo-Ayala, No. 11-14473 (March 22, 2013), the Court held that a defendant who sold drugs and firearms was not eligible for a “safety-valve” sentence reduction, because of the “connection” between the firearms and the drugs.




Defendants like Carillo-Avala, who are convicted of trafficking in certain quantities of drugs are subject to statutory mandatory minimum sentences – unless they qualify for the “safety-valve.” Carillo-Avala’s safety-valve eligibility turned on whether there was a “connection” between his drug trafficking offense and his possession of firearms, when his involvement with firearms was limited to his sale of firearms to a drug dealer.



The Court noted that only a “narrow class” of defendants are eligible for the safety-valve. Though rejecting the government’s argument that a “connection” between drugs and firearms existed simply because the firearms were part of the “relevant conduct” for the drug offense, the Court found that a “connection” requires less proof than a showing that firearms were possessed “in furtherance” of a drug offense. The “connection” is established if the defendant possesses a firearm “in close proximity” to drugs, or the firearm “facilitates” the drug offense by “emboldening” the defendant, or instills confidence in others, or helps the defendant avoid detection.



For Carillo-Ayala, the “connection” was established not because the firearms transactions created trust for the drug transactions – “greased” the drug transactions – but because he might have put the money from his firearms transactions to work in his drug enterprise, because the firearms he was selling to a drug dealer would help this drug dealer continue in the drug business and come back to Carillo-Ayala for more drugs, and because of the proximity of the firearms to the drugs. Carillo-Ayala did not bear his burden of showing that the firearms did not facilitate his drug transactions.