Eleventh Circuit Court of Appeals - Published Opinions

Monday, June 20, 2016

McCall: Summary denial of SOS for Guidelines applicant

In In re: Datrist McCall, No. 16-12972-J ((June 17, 2016), in a one-paragraph order, the Court denied an application for file a second or successive § 2255 motion to a defendant sentenced under the Sentencing Guidelines. [Judge Martin, concurring, noted that, unlike the Eleventh Circuit, all eleven of the other courts of appeals have either held or assumed that Johnson makes the residual clause of the career offender Guideline unconstitutionally vague. A grant of McCall’s application “would give him a shot at the relief he could have pursued had he been sentenced anywhere but in the Eleventh Circuit.” Judge Martin noted that the Eleventh Circuit had denied “hundreds” of applications by scrutinizing whether the applicant would prevail on the merits, reaching whether a defendant committed every crime listed in his presentence investigation report in the manner alleged in that report, or even deciding questions of first impression about how a state’s courts interpret the elements of its own criminal statute – without input from a lawyer. Judge Martin pointed out that other courts are not scrutinizing the merits of these cases at this stage. “If even a single one of those orders are mistaken, then a prisoner has been doomed to serve an unlawful prison sentence, without possibility of further review.” ].

Friday, June 17, 2016

Rogers: SOS Clear/Unclear test

In In Re: Joseph Rogers, Jr., No. 16-12626-J, the Court denied an application for a second or successive (SOS) § 2255 motion, ruling that “because binding precedent clearly classifies as elements clause offenses the convictions Mr. Rogers’ sentencing court relied on as ACCA predicates, his application does not make out a prima facie case under Johnson.” The Court explained that it applies a “clear/unclear” test. It denies an SOS application if it is clear that the motion will not contain a Johnson claim. This is clear when the sentencing court specifically identified three prior qualifying ACCA convictions under the elements or enumerated crimes clauses, and/or under binding precedent the prior convictions qualified as ACCA predicates under the elements or enumerated crimes clauses. If not, the Court applies Descamps, and, if it is unclear from binding precedent that the state statute is divisible under Descamps, the applicant has made out a prima facie case. “When neither the sentencing court’s finding on which ACCA clause or clauses applied nor binding on-point precedent forecloses an applicant’s assertion that his sentence arose under ACCA’s residual clause, we look to Descamps to ensure we apply the correct meaning of ACCA’s words.” And at this point, unless post-Descamps binding precedent clearly resolves the residual clause ambiguity, his application should be granted. The Court noted that deciding complex issues of first impression, such as whether a state statute was “divisible,” would be impracticable in a SOS proceeding. Citing the law-of-the-case doctrine, the Cout also noted that it had an obligation to determine whether its binding precedent “has been abrogated by intervening caselaw.” With respect to Rogers, in Turner v. Warden Coleman the Court had previously held that Florida aggravated assault, and Florida aggravated battery, qualified as a violent felony under the elements clause. Because Turner is binding precedent, Rogers did not make out a prima facie case.

Thursday, June 16, 2016

Hires: Denial of SOS because aggravated assault and robbery at gun point are violent felonies, and Descamps does not apply

In In Re: Morris Vernell Hires, No. 16-12744-J (June 15, 2016), the Court denied an application for a second or successive (SOS) § 2255 motion, ruling that a “Florida conviction for aggravated assault under § 784.021 is categorically a violent felony under the ACCA’s elements clause.” The Court stated that it had held in Turner v. Warden Coleman FCI (Medium), that an aggravated assault conviction “will always include as an element the threatened use of physical force against the person of another.” The Court further held that Hires’ 1995 conviction for robbery qualified as a violent felony. The Court noted that the unobjected-to facts in Hires’ PSI state that Hires pointed a gun at a victim and took the victim’s property at gunpoint. In determining the nature of a prior conviction, a sentencing court may rely on undisputed facts in the PSI. A Florida armed robbery qualifies as a violent felony. Turning to Descamps, the Court noted that while Descamps’ 2013 divisibility holding is retroactive for a first § 2255 motion, it is not retroactive for purposes of a second or successive § 2255 motion. The Court stated that “Johnson does not serve as a portal to relitigate whether a prior robbery conviction or another conviction qualifies under the elements clause.” The Court added that having in prior cases denied SOS applications because Descamps was not a new rule of constitutional law, it would now be “arbitrary and inequitable” to permit petitioners who can now cite Johnson to pursue SOS § 2255 motions only because their enhancements are ultimately invalidated by Descamps, not Johnson at all.

Wednesday, June 15, 2016

Adams: Granting SoS application where record "ambiguous" whether district court relied on residual clause, and Descamps applied

In In Re: Keith Devon Adams, No. 12519-J (June 15, 2016), the Court granted authorization to file a second or successive (SOS) § 2255 motion to a defendant sentenced under ACCA. It was unclear from the record which clause of ACCA the district court employed when it concluded that Adams’ prior burglary conviction under Fla. St. § 810.02 qualified as a “violent felony.” There was “some suggestion” that the district court considered the residual clause. At the time, Florida’s burglary statute was deemed an ACCA predicate under the residual clause, rather than the elements clause, or the enumerated clause. Further, the statute did not appear to be “divisible.” Rather than setting out the critical place-of-entry element in the alternative – i.e., “a building or its curtilage” – the place-of-entry element encompassed a “building of any kind . . . together with the curtilage thereof.” Thus, under Descamps, Adams’ burglary convicted cannot serve as a predicate offense under the enumerated crimes clause as an alternative. The Court recognized that in In Re Griffin, the Court had concluded that Decamps did not itself announce a new rule of constitutional law sufficient to satisfy § 2255(h)(2). However, the petitioner in Griffin relied on Descamps “as a standalone claim,” because the district court did not rely on the residual clause. In contrast, for Adams, the ambiguity surrounding the district court’s sentencing decision required inquiry into the text of the ACCA to determine which clause, if any, applied. The Court therefore looked to guiding precedent, such as Descamps, to interpret ACCA’s words correctly. “When this Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law.” Descamps “is not an independent claim that is itself subject to AEDPA’s gatekeeping requirements.”

Tuesday, June 14, 2016

Pierre: Affirming convictions and sentences for $1.9 million fraudulent tax refunds

In U.S. v. Pierre, No. 14-10589 (June 14, 2016), the Court affirmed the convictions and sentences of defendants charged with fraudulently obtaining approximately $1.9 million in tax refunds from the Internal Revenue Service (IRS). The Court rejected the argument that a stop of a vehicle for having tinted glass that violated Florida’s regulations was pretextual. The Court noted that probable cause existed for a stop, and subjective motive was irrelevant and that the driver of the vehicle consented to the search. The Court also rejected a challenge to the sufficiency of the evidence. The jury had sufficient evidence to conclude that a defendant knew the defendants knew that their business was not a legitimate tax preparation business. Turning to the sentences, the district court affirmed the imposition of a “vulnerable victim” enhancement for the use of the identities of prison inmates. The Court noted that inmates “usually do not file tax returns during periods of incarceration, and they are less likely to discover that their identities have been compromised.” The Court also rejected the challenge to the district court’s refusal to grant a minor role reduction. The Court noted that one defendant played a “vital role,” and another, though not a “leader,” had sufficient “participation” in the scheme to support the ruling. The Court also rejected a challenge to a loss amount calculation of more than $1 million but less than $2.5 million. The defendants submitted 338 fraudulent returns seeking over $2 million from the IRS. The intended loss was greater than the actual loss, but the guidelines allow a district court to rely on whichever of the two is greater.

Thursday, June 09, 2016

Saint Fleur: Denial of SOS to 924(c) defendant who committed armed Hobbs Act robbery

In In Re: Marckson Saint Fleur, No. 16-12299-J (June 8, 2016), the Court denied an application for leave to file a second or successive § 2255 motion (SOS) to an inmate who invoked Johnson as a basis for challenging his § 924(c) conviction. The Court noted that the indictment expressly charged that the underlying predicate offense for the § 924(c) offense was a Hobbs Act robbery that charged Saint Fleur with committing robbery “by means of actual and threatened force, violence, and fear of injury.” Thus, this offense involved the use of force. [Martin, J., concurring, noted that she was “increasingly wary” of deciding whether a SOS would fail on the merits. Judge Martin noted the lack of briefing in cases involving pro se applicants, and the many questions that arise when an ACCA designation is based “on old convictions under state law.”]

Hines: 924(c) defendant who committed armed bank robbery denied SOS application

In In re: Charles Hines, No. 16-12454 (June 8, 2016), the Court denied leave to file a second or successive § 2255 motion (SOS) to an inmate who invoked Johnson as a basis for voiding his § 924(c) conviction. The Court recognized that it had granted an SOS in In re Pinder to an applicant who also had been convicted under § 924(c). However, Hines’ case involved the actual commission a bank robbery, an offense which has the use of force as an element. Pinder involved a conspiracy to commit Hobbs Act robbery.

Tuesday, June 07, 2016

Pinder: Granting SOS to 924(c) inmate

In In Re: Ricardo Pinder, Jr., No. 16-12084-J (June 1,2016), the Court granted leave to file a second or successive § 2255 motion to an inmate sentenced under 18 U.S.C. § 924(c). The Court noted that § 924(c) contained very similar language to § 924(e) – the statute at issue in Johnson, and both require higher sentences once a court decides that an offense is a “crime of violence.” Both statutes required a “categorical approach,” which assessed the “hypothetical risk posed by an abstract generic version of the offense.” The Court noted that “the law is unsettled on whether the rule announced in Johnson invalidates Pinder’s sentence.” The issue “must be decided in the first instance by the District Court.” Further, Pinder’s sentence appears to have been based on a conviction for conspiracy to commit Hobbs Act robbery, and the Eleventh Circuit has not yet decided whether this offense qualifies as a “crime of violence” under ACCA.