Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, November 26, 2019

Perez: Threat-of-Death Enhancement Did Not Apply Where Bank Robber Threatened Harm But Not Death

In United States v. Perez, No. 17-14136 (Nov. 26, 2018) (Rosenbaum, Tjoflat, Pauley) (per curiam), the Court held that the district court clearly erred by applying the threat-of-death enhancement in the bank robbery Guideline, 2B3.1(b)(2)(F).

Accepting the government's concession, the Court concluded that, on the facts of this case, the defendant's conduct during two bank robberies would not have put a reasonable person in fear of death (as opposed to mere harm or danger).  While the defendant's notes to the tellers threatened harm in general, there was nothing to communicate a threat of death.  He did not state or imply that he had a weapon.  He did not wear clothing that could have concealed a weapon.  He did not wear a disguise.  He did not make any threatening gestures or act menacingly.  His note stated that he had kids to feed.  He did not aggressively demand money.  And, during one robbery, the teller rebuffed his demands; and, during the other, the teller left the counter and returned several minutes later.  Applying the enhancement under these facts would have impermissibly led to applying the enhancement in all bank robberies.

Thursday, November 21, 2019

Achey: Government Not Required to Prove Specific Drug Type When Included in the Indictment Only for Sentencing Purposes

In United States v. Achey, No. 18-11900 (Nov. 21, 2019) (Robreno, William Pryor, Jill Pryor), the Court affirmed the defendant's conviction for conspiracy to distribute a controlled substance.

The defendant argued that the evidence was insufficient because the government was required to prove that he conspired to distribute a specific controlled substance, but at trial it proved only that he distributed a controlled substance in general.  The Court rejected that argument.  The Court held that, under 21 U.S.C. 841(a)/846, the government was generally required to prove a conspiracy to distribute only a generic controlled substance; the type of controlled substance was not an element of the offense but was relevant only for sentencing purposes under 841(b).  While the government must prove the specific type of drug when it is charged as an element in the indictment, the indictment's reference to a specific drug here was fairly read as relevant only for sentencing purposes, as evidenced by the word "involving" and a citation to 841(b).  And, on the particular facts of this case, the Court found sufficient evidence of a conspiracy to distribute a controlled substance in general.

Tuesday, November 12, 2019

Brown: Hobbs Act Conspiracy Is Not a Crime of Violence

In Brown v. United States, No. 17-13993 (Nov. 12, 2019) (Martin, Rosenbaum, Jill Pryor) (per curiam), the Court granted the parties' joint motion for summary reversal of the denial of a 2255 motion challenging a 924(c) conviction.

First, the Court determined that Brown's 924(c) conviction was predicated solely on Hobbs Act conspiracy.   Although the indictment referenced both Hobbs Act conspiracy and two drug trafficking crimes, and the factual proffer included facts about the drug crimes, the plea agreement and plea colloquy showed that Brown's 924(c) conviction was based solely on the Hobbs Act conspiracy.  Those facts distinguished this case from In re Navarro, where the plea agreement referred to both Hobbs Act conspiracy and drug-trafficking crimes.

Second, and joining other circuits, the Court held that Hobbs Act conspiracy was not a crime of violence under the elements clause in 924(c)(3)(A).  The Court explained that neither an agreement to commit a crime nor knowledge of the conspiratorial goal necessarily requires the use, attempted use, or threatened use of force.  And a defendant's voluntary participation in the conspiracy can manifest itself in countless non-violent ways.

Thursday, November 07, 2019

In re Wright: Denying Successive Application Based on Rehaif

In In re Wright, No. 19-13994 (Nov. 7, 2019) (Ed Carnes, Tjoflat, Rosenbaum) (per curiam), the Court denied an application for leave to file a second or successive 2255 motion based on Rehaif.

The applicant sought to make two claims.  First, he claimed that he was actually innocent of his 922(g)(1) offense in light of Rehaif because he did not know he was a felon.  However, relying on its earlier decision in In re Palacios, the Court ruled that this claim did not satisfy the gatekeeping criteria in 2255(h)(2) because Rehaif was a statutory (not constitutional) decision, and the Supreme Court had not made it retroactive to cases on collateral review.

Second, the applicant claimed that he received ineffective assistance of counsel when his counsel advised him to plead guilty.  He had previously been convicted of a felon-in-possession offense in state court, and he claimed that his subsequent federal conviction violated his double jeopardy rights.  The Court denied him leave to pursue that claim in a 2255 motion because he did not identify any newly discovered evidence, and the Supreme Court had not issued any new rule of constitutional law to support his claim.

Judge Rosenbaum concurred.  She agreed that the Rehaif claim could not be brought in a successive 2255 motion, but she suggested that he may be able to do so in a 2241 petition.  She explained that Rehaif applied retroactively.  And although Eleventh Circuit law would preclude him from filing a 2241 petition, that law did not govern his case because he was incarcerated in the Fourth Circuit.  Accordingly, she suggested that he attempt to file a 2241 in that Circuit.

Wednesday, October 30, 2019

Hunt: Alabama Second/Third-Degree Robbery and Michigan Carjacking Satisfied the Elements Clause

In United States v. Hunt, et al., No. 17-12365 (Oct. 30, 2019) (Jordan, Grant, Siler) (per curiam), the Court affirmed the defendants' sentences (after re-issuing what was previously an unpublished opinion).

First, the Court held that, based on a prior SOS precedent and Stokeling, Alabama second-degree and third-degree robbery satisfied the elements clause in the ACCA and Guidelines, because it required force to overcome the victim's resistance.

Second, the Court held that Michigan carjacking satisfied the elements clause.  Although the offense could be accomplished by putting another person in fear, the defendant identified no Michigan case which involved putting the victim in fear without the use, attempted use, or threatened use of force.

Finally, the Court found that a 60-month 922(g) sentence was not substantively unreasonable.  Although this sentence was an upward variance, the court justified it based on his criminal history and use of firearms during illegal activity.

Tuesday, October 29, 2019

Harris: Alabama Attempted First-Degree Assault Satisfied the ACCA's Elements Clause

In United States v. Harris, No. 18-11513 (Oct. 29, 2019) (Marcus, Julies Carnes, Paul Kelly (10th)), the Court upheld the defendant's ACCA enhancement based on Alabama attempted first-degree assault.

The Court held that the Alabama assault offense satisfied the elements clause.   The parties disputed which alternative element of Alabama assault was at issue.  The Court ruled out reckless assault as a matter of state law, as the Court found that a specific intent was required.  Of the remaining two possibilities, circuit precedent had already held that assault by causation of serious injury satisfied the elements clause, and the same was true of attempting to commit that offense.  As to assault by serious disfigurement, the Court similarly held this offense satisfied the elements clause because it required the causation of pain or injury.

Ross: Reasonable Expectation of Privacy in Motel Room Vanishes at Checkout Time

In United States v. Ross, No. 18-11679 (Oct. 29, 2019) (Newsom, Wilson, Proctor), the Court affirmed the denial of a motion to suppress evidence found in two searches of a motel room.

The first search was conducted 10 minutes after the defendant fled the motel on foot.  Although the government did not raise the argument below, the Court considered the government's argument that the defendant abandoned his room and therefore lacked Fourth Amendment standing to challenge the search.  The Court considered that argument because, under circuit precedent, abandonment also implicated Article III standing, which was not waivable.  However, the Court rejected the abandonment argument on the merits.  Although the defendant had standing to challenge the search and protective sweep of the room, the Court found that it was constitutional because the officers were seeking to execute an arrest warrant, and they had a reasonable belief that the room was the defendant's and that he was inside.

The second search was conducted with the consent of hotel management after the scheduled checkout time.  The Court concluded that the defendant lacked Fourth Amendment standing to challenge the search because the defendant lost any reasonable expectation of privacy in the room after checkout time.  The Court held that, in general, a short-term hotel guest loses a reasonable expectation of privacy in his room after checkout, provided the guest has not asked for and received a late checkout.

Judge Newsom concurred, criticizing the circuit precedent that obligated the Court to consider the government's abandonment argument raised for the first time on appeal, because it improperly treated abandonment as part of Article III standing.  He urged the full Court to reconsider that precedent, in part because the government's ability to raise that argument for the first time on appeal—"rope-a-dope, bait-and-switch, whipsaw, whatever you wanted to call it—just doesn't seem very fair."

Monday, October 28, 2019

Reed: Upholding Felon in Possession Conviction After Rehaif on Plain Error Review

In United States v. Reed, No. 17-12699 (Oct. 28, 2019) (William Pryor, Newsom, Julie Carnes), the Court—without oral argument—upheld the defendant's felon in possession conviction in the face of a Rehaif challenge on remand from the Supreme Court.

Reviewing for plain error, the Court acknowledged that there were plain errors at the defendant's trial in light of Rehaif.  Specifically, the indictment did not allege, the jury was not instructed, and the government was not required to prove that the defendant knew he was a felon at the time he possessed a firearm.  However, the Court found that these plain errors did not affect the defendant's substantial rights or the fairness/integrity of the proceeding, because the entire record established that he knew he was a felon.  The Court considered a felon stipulation at trial, trial testimony by the defendant that he knew he was not allowed to possess a firearm, and undisputed PSI facts to being incarcerated for long periods of time, including one stretch of 18 years.

Ochoa: Upholding Hobbs Act and Firearm Convictions/Sentences Over Various Challenges

In United States v. Ochoa, No. 16-17609 (Oct. 25, 2019) (Hull, Rosenbaum, Grant), the Court affirmed the defendant's Hobbs Act and firearm convictions and sentences over various challenges.

First, the Court found no abuse of discretion in the limitation of cross examination of an officer about his unrelated personal misuse of police computers and efforts to conceal that misuse.  Although that decade-old misconduct was relevant to his character for truthfulness, it was only marginally relevant in this case, and the district court reasonably found that it was likely to confuse or mislead the jury.  Any error was harmless in any event in light of other evidence at trial.

Second, the Court upheld the denial of pre- and post-Miranda statements.  As to the former, the Court found that public safety exception to Miranda applied where the agent asked questions that he reasonably believed were necessary to secure a residence after the arrest of the defendant, who was a suspect in an armed robbery where someone was shot.  Although the officer did not have any specific reason to suspect that any particular person remained in the residence, his concern that other unknown individuals might have remained inside, despite the defendant's assertion to the contrary, was reasonable given the number of people who had already emerged from the house.  As to the post-Miranda statements, the Court found that the defendant's statements that he did not "agree with" the waiver of rights provision on the form did not constitute an unambiguous invocation of his right to counsel or to remain silent.  Any error was harmless in any event.

Third, the Court rejected the defendant's argument that the district court should have dismissed one count of the original indictment with prejudice due to a violation of the Speedy Trial Act.  After a mistrial, the retrial did not occur within 70 days and the indictment was therefore subject to dismissal.  However, the court did not abuse its discretion by dismissing it without (rather than with) prejudice because 922(g)(1) was a serious offense, neither party alerted the court to the violation, and the defense identified no prejudice.  The Court also rejected the defendant's argument that the district court should have dismissed the second indictment under the Speedy Trial Act on the ground that it was not filed within 30 days of his "arrest."  The Court rejected the argument that the defendant was "arrested" for purposes of the Act when he was transferred from one federal prison to FDC for purposes of awaiting re-trial on one dismissed count after having been convicted on other charges.

Fourth, the Court found that the evidence in the particular case was sufficient to support the convictions for Hobbs Act robbery, 924(c), and 922(g)(1).

Fifth, the Court upheld the defendant's career offender enhancement on the ground that Florida armed robbery and second-degree murder were crimes of violence under the elements clause.  As to the robbery, the Court included a footnote reiterating its earlier suggestion in Fritts that, after 1976, sudden snatching never constituted robbery under Florida law.

Lastly, the Court upheld an enhancement under 2K2.1 because a large capacity magazine was found in close proximity to a firearm.  Although the firearm was ultimately found outside the residence, and not in close proximity to the magazine in the bedroom drawer, the district court found that the firearm had previously been in the same room, and possibly even the same drawer, as the magazine.

Judge Rosenbaum dissented on two points.  First, although she agreed that there was no abuse of discretion in limiting the cross examination, she did not agree with the majority's suggestion that the officer's efforts to obstruct an investigation into himself had no bearing on the likelihood that he may have manipulated evidence in an investigation of another person.  Second, she believed that the public safety exception did not apply because the officers were searching a private home and specifically asked about a weapon that could only be operated by another person; and, although a close question, she did not believe the error was harmless.