Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, July 19, 2017

Burke: State Sentence Imposed After Initial Federal Sentence but Before Federal Re-sentencing is "Prior Sentence"

In United States v. Burke, No. 16-16458 (July 19, 2017) (William Pryor, Ed Carnes, Dubina), the Court held that the term "prior sentence" under U.S.S.G. 4A1.1(a) includes a state sentence imposed after the defendant's initial federal sentence but before the district court vacated that sentence and re-sentenced him.

In 2010, Burke was sentenced as an armed career criminal.  In 2011, a Florida state court sentenced him on a variety of offenses.  In 2016, the district court granted Burke's 2255 motion based on Johnson, vacated the initial sentence, and conducted a full re-sentencing.  At that re-sentencing, the court treated the 2011 Florida sentences as "prior sentences" for purposes of calculating his criminal history.  The court of appeals held that this was correct because, when a district court vacates a sentence, that sentence becomes void in its entirety.  "[V]acatur in our Circuit wipes the slate clean," and re-sentencing is de novo.  Therefore, the 2011 sentences became "prior sentences" when he was re-sentenced in 2016.  In so holding, the Court joined the Eighth and Ninth Circuits and rejected a contrary decision from the First Circuit.  It also rejected Burke's reliance on the rule of lenity, finding the text of the Guideline clear, but also doubting that the rule of lenity applies to the advisory Guidelines at all.

The Court also rejected Burke's argument that his 1999 Florida armed robbery conviction was not a crime of violence under U.S.S.G. 2K2.1, because that argument was foreclosed by binding precedent in Fritts and Lockley.

Monday, July 17, 2017

Lange: Florida Aiding and Abetting Attempted Manufacture is "Controlled Substantce Offense"

In United States v. Lange, No. 16-15164 (July 17, 2017) (William Pryor, Ed Carnes, Moore), the Court held that the Florida offense of being a principal to the attempted manufacture of a controlled substance qualified as a "controlled substance offense" under U.S.S.G. 4B1.2(b).

In so holding, the Court relied heavily on the commentary to the Guidelines.  Although the commentary listed aiding and abetting, attempting, and conspiring to prohibit manufacture, the Court found that this list of inchoate crimes was inclusive, not exclusive.  Applying general rules of statutory construction, and declining to read the Guidelines narrowly, the Court found that the commentary also encompassed principal liability for aiding and abetting attempted manufacture.  Like the enumerated inchoate crimes, this crime also sought to prohibit manufacture.  To support its conclusion, the Court also relied on Florida's principal liability law and the federal law of aiding and abetting under 18 U.S.C. 2.

Applying plain error, the Court also rejected the defendant's argument that the government engaged in sentencing factor manipulation by encouraging five separate criminal transactions during a sting operation instead of arresting him after the first transaction.  The Court noted that the government must engage in "extraordinary  misconduct" in order to engage in sentencing factor manipulation, and the Court had never previously reduced a sentence on that basis.  The Court found no error, let alone plain error, because nothing required officers to make an arrest after the first transaction in a sting operation.

Friday, July 14, 2017

Wright: Non-Descript PII not an "Access Device" and Traffic Citation Not an "Arrest"

In United States v. Wright, No. 15-14833 (July 14, 2017) (Hull, Marcus, Rogers), the Court addressed a variety of Guidelines issues, ultimately vacating the sentence and remanding for further proceedings.

First, for purposes of the fraud loss Guideline and identity-theft statute, the Court held that debit/credit cards and social security numbers qualified as an "access device."  The Court, however, held that "personal identifying information" -- without any evidence about what that information contained -- was not an access device.  Because the district court's loss calculation turned on that issue, and there were no factual findings regarding the PII, the Court remanded for further proceedings.

Second, the Court affirmed the denial of a two-level minor-role reduction under De Varon, finding that the defendant possessed and transmitted lots of PII.  Although she claimed that she feared for her safety, her refusal to identify any other members of the conspiracy meant that she failed to meet her burden to establish that she had a lesser role.

Third, the Court affirmed the denial of a reduction for acceptance of responsibility because, although the defendant had cooperated and pled guilty, she was convicted for misdemeanor marijuana possession during pretrial release, finding that evidence of continued, but unrelated, criminal conduct after an arrest supports the denial.

Fourth, the Court held that a diversionary disposition resulting from a nolo plea qualified for criminal history points, even though adjudication was withheld.  The Court also held that a traffic citation did not constitute an intervening "arrest" for purposes of 4A1.2(c), a question that had divided two circuits.

Monday, July 10, 2017

Louis: Drug-Trafficking Convictions Reversed for Insufficient Evidence

In United States v. Louis, No. 16-11349 (July 10, 2017) (Wilson, Tjoflat, Robreno), the Court reversed a defendant's drug-trafficking convictions for insufficient evidence.

The Court emphasized that, in order to find the defendant guilty of conspiracy to posses cocaine with intent to distribute, and possession of cocaine with intent to distribute, the government was respectively required to prove beyond a reasonable doubt that the defendant knew the object of the conspiracy and that he was in possession of cocaine.  The Court found that, while there was sufficient evidence that the defendant knew that the boxes in question contained contraband that was illegal under some law, there was insufficient evidence to establish his knowledge that the boxes contained drugs.  The government relied heavily on the defendant's presence and flight, but the Court found this evidence, without more, to be insufficient.  The Court also rejected the government's reliance on an entrustment theory because, despite the large quantity of drugs, the defendant was present with the drugs only briefly and was never left alone with them.

Melton: Promise to File 5K or Rule 35 Motion is Not a Promise to File a 3553(e) Motion

In United States v. Melton, et al. Nos. 15-15738, 15-15743 (July 10, 2017) (Ed Carnes, Rosenbaum, Higginbotham), the Court reversed orders granting defendants relief under 18 U.S.C. 3582(c)(2) to sentences below the statutory minimum based on 18 U.S.C. 3553(e).

Generally, a defendant sentenced to the statutory minimum is not entitled to a reduction under 3582(c)(2).  The district court went below the statutory minimum here by effectively forcing the government to file a 18 U.S.C. 3553(e) motion, believing that this was necessary in order to give the defendants the benefit of their plea agreement.  The Court reversed because, although the plea agreement contemplated the government filing a 5K1.1  or Rule 35 motion (and the government did in fact file a 5K motion at the original sentencing), the agreement said nothing at all about a 3553(e) motion.  And the Court refused to imply such a promise into the agreement, distinguishing between 3553(e), 5K, and Rule 35.  Because the plea agreement did not include such a 3553(e) promise, the Court concluded that the district court lacked authority to re-write the agreement and go below the statutory minimum when granting 3582(c)(2) relief.  The Court declined to address whether the government is permitted to file a 3553(e) motion in a 3582(c)(2) proceeding in order to give the defendant the benefit of his bargain.


Friday, June 30, 2017

Ovalles: Johnson Does not Invalidate Residual Clause in 924(c)(3)(B)

In Ovalles v. United States, No. 17-10172 (Hull, William Pryor, Tjoflat), the Court -- without holding oral argument -- held that Johnson does not invalidate the residual clause in 18 U.S.C. 924(c)(3)(B), and that attempted carjacking satisfies the elements clause in 18 U.S.C. 924(c)(3)(A).

As for the residual clause, the Court agreed with three circuits and found that 924(c)(3)(B) was materially different, both textually and functionally, from the ACCA's residual clause.  The Court found the Seventh Circuit's contrary decision in Cardena unpersuasive.  Notably, the Court did not mention Dimaya, still pending in the Supreme Court, but on page 21 it did seek to distinguish the analysis under 16(b) as being less precise and predictable than the analysis under 924(c)(3)(B).

As for the elements clause, the Court observed that it had already held in the SOS context, in In re Smith, that carjacking qualified.  Assuming that attempted carjacking by "threat and violence" clearly qualified, the Court focused on the intimidation prong, finding that "[p]roscribed criminal conduct where the defendant must take the car by intimidation and act with intent to kill or cause serious bodily injury is unmistakably a crime of violence also."  For support, the Court notably cited two federal bank robbery cases, Kelly and In re Sams.  Applying categorical approach, the Court concluded that it could conceive of no "plausible" (as distinguished from "theoretical") ways to commit attempted carjacking without either the attempted or threatened use of force.

Wednesday, June 28, 2017

Spivey: Police Deception Does Not Vitiate Voluntariness of Consent

In United States v. Spivey, No. 15-15023 (June 28, 2017) (William Pryor, Martin, Boggs), the Court held that the use of deception by law enforcement officers did not vitiate the voluntariness of a defendant's consent to the warrantless entry and search of her home.

The majority said that, while deception can be relevant to voluntariness, it would not necessarily or always render consent involuntary; rather, it was just one factor to consider.  At the same time, the court also said that the subjective motivation of the officers, including their use of a pretext or even a deliberate lie, was not relevant to voluntariness, since the inquiry focused on the defendant's state of mind.  In this case, the defendant had reported prior burglaries of her home.  The burglar was arrested and informed the authorities that the home contained a credit card manufacturing plant.  Two federal fraud-task force officers then went to the home on the pretext of following up on the burglary when in fact their real purpose was to investigate the credit card fraud.  They informed her that they were there to investigate the burglaries, and they misrepresented the identity of one of the officers -- a Secret Service Agent who falsely posed as a crime-scene technician and pretended to dust the house for fingerprints.  The majority found that the defendant essentially invited the officers to her home by reporting the burglaries and made the strategic decision/gamble to assume the risk of the officers discovering contraband.

Judge Martin wrote a lengthy dissent, arguing that the consent was not voluntary under the circumstances of this case.  She concluded this way: "The Majority opinion tells police that what happened here is not a problem.  In effect, it teaches police they don't need to get a warrant so long as they can pre-plan a convincing enough ruse.  This is true even if, as here, that ruse includes skirting the limits of the officer's legal authority to investigate only certain crimes.  In doing so, I fear the Majority opinion undermines the public's trust in the police as an institution together with the central protections of the Fourth Amendment.  When I read the record in Ms. Austin's case, I don't believe this is the 'reasonable' conduct our Founders had in mind when drafting the Fourth Amendment."

Tuesday, June 13, 2017

Alberts: Minor-on-Minor Conduct Can Trigger 2G2.2(b)(5) Enhancement for Pattern of Sexual Abuse

In United States v. Alberts, No. 16-11065 (June 13, 2017) (Martin, Jill Pryor, Anderson), the Court affirmed a 120-month sentence for receiving and possessing child pornography.

The defendant unsuccessfully made two arguments on appeal.  First, he argued that the district court erroneously applied the enhancement in 2G2.2(b)(5) for engaging in a pattern of activity involving sexual abuse.  The defendant did not dispute the PSI facts, where he admitted to engaging in sexual activity with minor relatives, and that admission, coupled with corroborating indicators of his interest in pedophilia and incest, was sufficient to support the enhancement.  The defendant argued that, because the sexual activity occurred more than 30 years ago, it was too attenuated, but he acknowledged that this argument was foreclosed by binding circuit precedent.  And the Court rejected the defendant's argument that the enhancement does not apply to sexual activity committed by the defendant when he himself was a minor.  Joining other circuits, the Court reasoned that the application notes to 2G2.2(b)(5) referred to several statutory provisions that prohibited minor-on-minor conduct, and nothing in the Guideline was to the contrary.  The Court cautioned, however, that only conduct falling within one the statutory provisions can support an enhancement, but the defendant did not dispute that his conduct qualified as "sexual acts" within the meaning of one of those statutes.

Second, the defendant argued that his sentence was procedurally and substantively unreasonable.  As to the former, the Court, applying plain error, found that, although the district court did plainly err under Tapia by considering the need for rehabilitation at sentencing, that error did not affect the defendant's substantial rights because rehabilitation was merely an ancillary concern at sentencing.  As to the latter, the Court found that the 120-month sentence, which fell below the properly calculated guideline range, was not substantively unreasonable.