In U.S. v. Searcy, No. 03-16282 (July 28, 2005), the Court (Dubina, Wilson, Lawson b.d.) affirmed the sentence of a defendant convicted of using the internet to induce a minor to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b).
The Court rejected the challenge to the sentencing court’s use of a prior § 2422(b) conviction as a "crime of violence" for career offender enhancement purposes. The Court noted that the definition of a "crime of violence" referred to a crime involved a serious potential risk of injury. Citing the legislative history of § 2422(b) and the caselaw of other Circuits, the Court found that offenses involving sex crimes against minors always involve a risk that physical force will be used to ensure a child’s compliance with an adult’s sexual demands.
Thursday, July 28, 2005
Afanasjev: Unsworn indictment suffices for extradition
In Afanasjev v. Hurlburt, No. 04-13303 (July 26, 2005), the Court (Black, Hull, Hodges b.d.), the Court affirmed the denial of habeas relief under 28 U.S.C. § 2241, and upheld an order of extradition to Lithuania.
The Court rejected the argument that the unsworn 106-page Lithuanian indictment, which summarized statements made by victims and other witnesses, was insufficient evidence to establish probable cause for extradition. The Court stated that evidence presented for extradition need not be admissible at trial, pointing out that the unsworn statements of absent witnesses may be acted upon by the committing magistrate. The Court pointed out that the indictment lists the specific dates of events, the names of witnesses and victims, and the amount of money involved. The Court noted that the Magistrate compared witness statements with each fraud count, and ensured there was adequate evidence to support each count. The Court further noted that the fact of the defendants flight from Lithuania before trial on the fraud charges could also support probable cause.
The Court rejected the argument that the unsworn 106-page Lithuanian indictment, which summarized statements made by victims and other witnesses, was insufficient evidence to establish probable cause for extradition. The Court stated that evidence presented for extradition need not be admissible at trial, pointing out that the unsworn statements of absent witnesses may be acted upon by the committing magistrate. The Court pointed out that the indictment lists the specific dates of events, the names of witnesses and victims, and the amount of money involved. The Court noted that the Magistrate compared witness statements with each fraud count, and ensured there was adequate evidence to support each count. The Court further noted that the fact of the defendants flight from Lithuania before trial on the fraud charges could also support probable cause.
Magluta: Co-Conspirator Hearsay Error
In U.S. v. Magluta, No. 03-10694 (July 27, 2005), the Court (Carnes, Cox, Mills b.d.) affirmed all convictions except one for obstruction of justice through juror bribery. The Court rejected Maglutta’s challenge to his sentence, but vacated the sentence for resentencing in light of whatever disposition occurred with regard to the now-vacated obstruction count.
The Court rejected the argument that Magluta’s prior acquittal on drug trafficking charges barred the introduction of evidence relating to these offenses at his subsequent money laundering trial. The Court noted that, for jury acquittals, the doctrine of collateral estoppel only bars reprosecution if the legal elements of the offense overlap and there is "factual identity" of the issues. Here, the elements did not overlap, because the money laundering charges did not require the government to prove that Maglutta himself engaged in drug trafficking: "As far as the money laundering statute is concerned, laundering someone else’s illegal proceeds is just as bad as laundering your own."
The Court also rejected Magluta’s attack on the sufficiency of the evidence supporting his money laundering convictions. Magluta argued that the laundered money lost its "tainted" character because, through the auspices of a government informant, it passed under the control of law enforcement. While stopping short of holding that this argument had no merit, the Court held that given the limited control of the government over the laundered funds in this case, the level of involvement was not enough to undermine the conviction.
The Court also rejected the argument that since Magluta used the proceeds of unlawful activity to pay his lawyers, here was merely spending the money, not concealing its source. However, Magluta’s use of a false name on the foreign bank account on which the checks were drawn showed that he went to "great pains" to conceal the fact that he was using drug proceeds to pay his lawyers.
The Court found merit in Magluta’s challenge to the admission in evidence, in the count for obstruction of justice through bribery of a juror, of the allegedly-bribed juror’s statement to a government informant -- two and half years after the bribery -- that he would keep quiet about the bribe. The statement had been admitted over a hearsay objection as a co-conspirator statement made in furtherance of the conspiracy. Magluta claimed that the statement was made well after the conspiracy ended. The Court noted that keeping an initial conspiracy secret is not part of the conspiracy, and concealing the source of the money when the juror made purchases was not part of the initial conspiracy either. The Court found that the error in admitting the statement was not harmless, as it directly tied Magluta to the bribe.
The Court rejected Magluta’s argument that documents were illegally seized from the trunk of a vehicle driven by Bonachea, a Magluta associate, based on an anonymous phone call to the U.S. Attorney alerting him to the existence of incriminating documents in the trunk. Bonachea’s vehicle was stopped for speeding, and a drug dog alerted for marijuana inside the car.
Assuming, without deciding, that Magluta had standing to contest the search of Bonachea’s vehicle, the Court found that the officers had probable cause to to believe that the trunk contained evidence of a crime. The anonymous tip was entitled to substantial weight, because it was correct as to several specifics relating to Bonachea, her schedule and her vehicle.
The Court found no error in the dollar drug amount imputed to Magluta for sentencing purposes. The Court pointed that any error was harmless in light of the sentencing court’s stated intention in the alternative to depart upward to reflect the "anomaly" of Magluta’s prior acquittal.
The Court also rejected the argument that Booker had undermined the Guideline rule which requires sentences to run consecutively to achieve the range set the guidelines. The Court noted that Booker had merely made the Guidelines advisory, and did not affect the validity of Guideline rule.
The Court rejected the argument that Magluta’s prior acquittal on drug trafficking charges barred the introduction of evidence relating to these offenses at his subsequent money laundering trial. The Court noted that, for jury acquittals, the doctrine of collateral estoppel only bars reprosecution if the legal elements of the offense overlap and there is "factual identity" of the issues. Here, the elements did not overlap, because the money laundering charges did not require the government to prove that Maglutta himself engaged in drug trafficking: "As far as the money laundering statute is concerned, laundering someone else’s illegal proceeds is just as bad as laundering your own."
The Court also rejected Magluta’s attack on the sufficiency of the evidence supporting his money laundering convictions. Magluta argued that the laundered money lost its "tainted" character because, through the auspices of a government informant, it passed under the control of law enforcement. While stopping short of holding that this argument had no merit, the Court held that given the limited control of the government over the laundered funds in this case, the level of involvement was not enough to undermine the conviction.
The Court also rejected the argument that since Magluta used the proceeds of unlawful activity to pay his lawyers, here was merely spending the money, not concealing its source. However, Magluta’s use of a false name on the foreign bank account on which the checks were drawn showed that he went to "great pains" to conceal the fact that he was using drug proceeds to pay his lawyers.
The Court found merit in Magluta’s challenge to the admission in evidence, in the count for obstruction of justice through bribery of a juror, of the allegedly-bribed juror’s statement to a government informant -- two and half years after the bribery -- that he would keep quiet about the bribe. The statement had been admitted over a hearsay objection as a co-conspirator statement made in furtherance of the conspiracy. Magluta claimed that the statement was made well after the conspiracy ended. The Court noted that keeping an initial conspiracy secret is not part of the conspiracy, and concealing the source of the money when the juror made purchases was not part of the initial conspiracy either. The Court found that the error in admitting the statement was not harmless, as it directly tied Magluta to the bribe.
The Court rejected Magluta’s argument that documents were illegally seized from the trunk of a vehicle driven by Bonachea, a Magluta associate, based on an anonymous phone call to the U.S. Attorney alerting him to the existence of incriminating documents in the trunk. Bonachea’s vehicle was stopped for speeding, and a drug dog alerted for marijuana inside the car.
Assuming, without deciding, that Magluta had standing to contest the search of Bonachea’s vehicle, the Court found that the officers had probable cause to to believe that the trunk contained evidence of a crime. The anonymous tip was entitled to substantial weight, because it was correct as to several specifics relating to Bonachea, her schedule and her vehicle.
The Court found no error in the dollar drug amount imputed to Magluta for sentencing purposes. The Court pointed that any error was harmless in light of the sentencing court’s stated intention in the alternative to depart upward to reflect the "anomaly" of Magluta’s prior acquittal.
The Court also rejected the argument that Booker had undermined the Guideline rule which requires sentences to run consecutively to achieve the range set the guidelines. The Court noted that Booker had merely made the Guidelines advisory, and did not affect the validity of Guideline rule.
Tuesday, July 19, 2005
Taylor: Unproven complaints vs. police
In U.S. v. Taylor, No. 04-10667 (July 19, 2005), the Court (Birch, Carnes, Roney) affirmed convictions and a 322-month sentence imposed for being a felon in possession of a firearm, possesion of marihuana, and using a firearm during a drug trafficking offense.
The Court rejected the argument that the trial court should have allowed the defendant to introduce evidence of citizen complaints regarding the arresting police officer’s history of planting evidence, and brutality. The Court noted that all the incidents were "unproven." Citing U.S. v. Novaton, the Court noted that unproven allegations are not proper impeachment evidence. The Court further noted that the defendant had not proferred testimony of witnesses who could testify about specific misconduct. Moreover, brutality complaints were irrelevant to the drug and gun possession charges against Taylor.
The Court also rejected a challenge to the exclusion of background evidence concerning Taylor’s homelessness, finding the admission of such evidence within the broad discretion of the district court.
The Court further rejected Taylor’s complaint that he was not provided with discovery of a jailhouse’s companion’s testimony concerning Taylor’s confession of the crime. The Court pointed out that Fed. R. Crim. P. 16 only requires disclosure of witness statements given to the government under interrogation. Here, the statement was not given to the government, and it was not made in response to interrogation.
The Court also rejected the argument that introduction of Taylor’s prior gun conviction violated Rule 404(b). The Court found that this evidence, subject to the court’s limiting instruction, was admissible on the gun counts against Taylor.
The Court found no plain error under Booker in the sentence, noting that there was no evidence a lesser sentence would have been imposed had the sentencing court treated the Guidelines as advisory, not mandatory.
The Court rejected the argument that the trial court should have allowed the defendant to introduce evidence of citizen complaints regarding the arresting police officer’s history of planting evidence, and brutality. The Court noted that all the incidents were "unproven." Citing U.S. v. Novaton, the Court noted that unproven allegations are not proper impeachment evidence. The Court further noted that the defendant had not proferred testimony of witnesses who could testify about specific misconduct. Moreover, brutality complaints were irrelevant to the drug and gun possession charges against Taylor.
The Court also rejected a challenge to the exclusion of background evidence concerning Taylor’s homelessness, finding the admission of such evidence within the broad discretion of the district court.
The Court further rejected Taylor’s complaint that he was not provided with discovery of a jailhouse’s companion’s testimony concerning Taylor’s confession of the crime. The Court pointed out that Fed. R. Crim. P. 16 only requires disclosure of witness statements given to the government under interrogation. Here, the statement was not given to the government, and it was not made in response to interrogation.
The Court also rejected the argument that introduction of Taylor’s prior gun conviction violated Rule 404(b). The Court found that this evidence, subject to the court’s limiting instruction, was admissible on the gun counts against Taylor.
The Court found no plain error under Booker in the sentence, noting that there was no evidence a lesser sentence would have been imposed had the sentencing court treated the Guidelines as advisory, not mandatory.
Holt: no writ of audita querela
In U.S. v. Holt, No. 04-15848 (July 19, 2005), the Court (Tjoflat, Birch, Dubina) denied an inmate’s Booker-based writ of audita querela which challenged a sentence.
At common law, a writ of audita querela – Latin for "the complaint having been heard" – allowed a challenge to a judgment after it was rendered because of some defense or discharge arising afterward. The Court noted, however, that such common law writs only survive the habeas corpus statutes to the extent that they fill gaps in these statutes. Here, there was no gap to be filed, because § 2255 provides a specific remedy for Holt’s type of challenge, namely a constitutional attack on his sentence. Therefore, no writ of audita querela could be entertained.
Further, because Holt had previously filed a first § 2255 motion, his current proceeding, converted into a § 2255 motion, was deemed "second and successive" under the AEDPA. As such, it had to be dismissed because Holt failed to obtain the requisite authorization from the court of appeals to initiate a second or successive § 2255 proceeding.
At common law, a writ of audita querela – Latin for "the complaint having been heard" – allowed a challenge to a judgment after it was rendered because of some defense or discharge arising afterward. The Court noted, however, that such common law writs only survive the habeas corpus statutes to the extent that they fill gaps in these statutes. Here, there was no gap to be filed, because § 2255 provides a specific remedy for Holt’s type of challenge, namely a constitutional attack on his sentence. Therefore, no writ of audita querela could be entertained.
Further, because Holt had previously filed a first § 2255 motion, his current proceeding, converted into a § 2255 motion, was deemed "second and successive" under the AEDPA. As such, it had to be dismissed because Holt failed to obtain the requisite authorization from the court of appeals to initiate a second or successive § 2255 proceeding.
Smith: Applying Levy
In U.S. v. Smith, No. 03-15299 (July 18, 2005), the Court (Hull, Marcus, Hancock b.d.), after a remand from the Supreme Court for further consideration in light of Booker, applied its Levy rule and held that Smith was not entitled to raise a Booker challenge because he failed to raise the issue in his initial brief on direct appeal. The Court explained that the Supreme Court had applied its own prudential rule in Pasquantino in declining to consider a Booker issue, because the issue was not raised in the Court of Appeals or in a brief in the Supreme Court. Further, the Court noted that it was not "unduly harsh" or "overly burdensome" to require counsel to raise issues in their initial brief, even issues that appear foreclosed by circuit precedent.
Monday, July 18, 2005
Conklin: No habeas relief on "new evidence"
In In re Conklin, No. 05-13817 (July 12, 2005), the Court (Edmondson, Barkett, Wilson) (2-1, Barkett, J., dissenting), denied the habeas petition of a Georgia inmate facing execution.
Conklin sought to justify bringing a second habeas petition on the ground that "new evidence," in the form of a medical examiner’s opinion, was suppressed at his trial. The Court rejected this argument, finding that even in light of this evidence Conklin could not have met AEDPA’s stringent test of showing that no reasonable factfinder would have imposed the death penalty. The Court further noted that Conklin could in fact have presented this "new evidence" in his first habeas petition.
The Court expressed "misgivings" about the trial court’s constraints on the defense’s ability to prepare for trial and to obtain an expert witness, but found that it could not rule for Conklin without further guidance from the Supreme Court on the scope of a defendant’s Sixth Amendment right to expert assistance in putting on a defense of self-defense.
Conklin sought to justify bringing a second habeas petition on the ground that "new evidence," in the form of a medical examiner’s opinion, was suppressed at his trial. The Court rejected this argument, finding that even in light of this evidence Conklin could not have met AEDPA’s stringent test of showing that no reasonable factfinder would have imposed the death penalty. The Court further noted that Conklin could in fact have presented this "new evidence" in his first habeas petition.
The Court expressed "misgivings" about the trial court’s constraints on the defense’s ability to prepare for trial and to obtain an expert witness, but found that it could not rule for Conklin without further guidance from the Supreme Court on the scope of a defendant’s Sixth Amendment right to expert assistance in putting on a defense of self-defense.
White: Booker inapplicable to revocation supervised release
In U.S. v. White, No. 04-13442 (July 14, 2005), the Court (Carnes, Marcus, Fay) rejected a Booker-based challenge to a sentence imposed for revocation of supervised release.
The Court first rejected a Booker-challenge to the district court’s November 1999 imposition of a sentence of supervised release. The Court noted that U.S. v. Almand, 992 F.2d 316 (11th Cir. 1993) precluded a challenge to an underlying sentence in a revocation context, and further noted that Varela v. U.S., 400 F.3d 864 (11th Cir. 2005) precluded Booker’s application in a section 2255 context.
The Court noted that the Supreme Court has yet to address whether Booker applied in supervised release revocation proceedings. The Court determined that even if Booker applied, there was no constitutional Booker error, because White admitted the facts that were used to enhance his sentence. Further, there was no Booker statutory error, because the district court did not treat the Guideline policy statements for revocation proceedings as binding. Moreover, in the absence of a Supreme Court case on point, any error could not be "plain."
The Court first rejected a Booker-challenge to the district court’s November 1999 imposition of a sentence of supervised release. The Court noted that U.S. v. Almand, 992 F.2d 316 (11th Cir. 1993) precluded a challenge to an underlying sentence in a revocation context, and further noted that Varela v. U.S., 400 F.3d 864 (11th Cir. 2005) precluded Booker’s application in a section 2255 context.
The Court noted that the Supreme Court has yet to address whether Booker applied in supervised release revocation proceedings. The Court determined that even if Booker applied, there was no constitutional Booker error, because White admitted the facts that were used to enhance his sentence. Further, there was no Booker statutory error, because the district court did not treat the Guideline policy statements for revocation proceedings as binding. Moreover, in the absence of a Supreme Court case on point, any error could not be "plain."
Rivers fails Johnson habeas diligence test
In Rivers v. U.S., No. 03-11734 (July 14, 2005), the Court (Anderson, Barkett, Wilson), following a remand from the Supreme Court for further consideration of its denial of habeas relief in light of Johnson v. U.S., 125 S.Ct. 1571 (2005), reaffirmed its prior decision.
The Court recognized that Johnson had undermined some of the prior basis for its denial of habeas relief under the AEDPA statute of limitations. The Court noted, however, that Johnson required habeas petitioners who challenged their sentence on the basis of a vacatur of a state conviction had to show "due diligence" in obtaining the vacatur. Here, Rivers did not seek vacatur of his prior state conviction until more than four years after entry of the federal sentence which had been enhanced on the basis of this (now-vacated) prior state conviction. This precluded him from obtaining federal habeas relief.
The Court recognized that Johnson had undermined some of the prior basis for its denial of habeas relief under the AEDPA statute of limitations. The Court noted, however, that Johnson required habeas petitioners who challenged their sentence on the basis of a vacatur of a state conviction had to show "due diligence" in obtaining the vacatur. Here, Rivers did not seek vacatur of his prior state conviction until more than four years after entry of the federal sentence which had been enhanced on the basis of this (now-vacated) prior state conviction. This precluded him from obtaining federal habeas relief.
McNair: no habeas relief based on bible in jury room
In McNair v. Campbell, No. 04-11400 (July 13, 2005), the Court denied habeas relief to an Alabama inmate sentenced to death for a 1990 murder.
The Court held that the defendant was not entitled to an evidentiary hearing concerning his ineffective assistance of counsel claim, and that the trial court erred in relying on evidence developed at its federal evidentiary hearing in support of its decision granting habeas relief. The Court pointed out that the defendant had not been "diligent" in his post-conviction proceedings in state court in developing evidence in support of an ineffectiveness claim. Consequently, he was now barred under 28 U.S.C. sec. 2254(e)(2) from attempting to develop this evidence later, in federal court.
The Court also rejected McNair’s challenge to his conviction based on the fact that the jury took a Bible back to the jury room. The Court found that this claim was not preserved in state court, and even had it been, it would not have entitled him to prevail in light of the strong evidence against him. The Court rejected the argument that the State had waived its reliance on the procedural bar, noting that under AEDPA, an affirmative waiver was required – which did not occur here.
Finally, the Court rejected the Batson challenge to the jury selection, finding no impropriety in the striking of individual jurors, and no evidence that an alleged practice by the local prosecutor of systematically striking blacks affected McNair’s jury selection.
The Court held that the defendant was not entitled to an evidentiary hearing concerning his ineffective assistance of counsel claim, and that the trial court erred in relying on evidence developed at its federal evidentiary hearing in support of its decision granting habeas relief. The Court pointed out that the defendant had not been "diligent" in his post-conviction proceedings in state court in developing evidence in support of an ineffectiveness claim. Consequently, he was now barred under 28 U.S.C. sec. 2254(e)(2) from attempting to develop this evidence later, in federal court.
The Court also rejected McNair’s challenge to his conviction based on the fact that the jury took a Bible back to the jury room. The Court found that this claim was not preserved in state court, and even had it been, it would not have entitled him to prevail in light of the strong evidence against him. The Court rejected the argument that the State had waived its reliance on the procedural bar, noting that under AEDPA, an affirmative waiver was required – which did not occur here.
Finally, the Court rejected the Batson challenge to the jury selection, finding no impropriety in the striking of individual jurors, and no evidence that an alleged practice by the local prosecutor of systematically striking blacks affected McNair’s jury selection.
Levy Reaffirms Levy
In U.S. v. Levy, No. 01-17133 (July 12, 2005), the Court (Anderson, Hull, Pryor), on remand from the Supreme Court for further consideration in light of Booker, reaffirmed its prior reported decisions in the case, and held that a defendant whose case was on appeal when Booker was decided waived a Booker challenge when he failed to raise a Booker claim in an initial brief on appeal.
The Court pointed out that the Booker opinion itself stated that the retroactive application of its holding to cases then pending on direct review would depend on "ordinary prudential doctrines." The Court further pointed out that in two recent cases, Shea v. Lousiana and Pasquantino v. United States, the Supreme Court recognized the applicability of ordinary rules of waiver to cases pending on direct review. "It seems relatively obvious that if the Supreme Court may apply its prudential rules to foreclose a defendant's untimely [Booker] claim, there is no reason why this Court should be powerless [to do so too]." The Court further noted that parties could, and did, challenge the constitutionality of the Guidelines pre-Booker, and reasoned that its waiver rule was not, therefore, unduly harsh.
The Court pointed out that the Booker opinion itself stated that the retroactive application of its holding to cases then pending on direct review would depend on "ordinary prudential doctrines." The Court further pointed out that in two recent cases, Shea v. Lousiana and Pasquantino v. United States, the Supreme Court recognized the applicability of ordinary rules of waiver to cases pending on direct review. "It seems relatively obvious that if the Supreme Court may apply its prudential rules to foreclose a defendant's untimely [Booker] claim, there is no reason why this Court should be powerless [to do so too]." The Court further noted that parties could, and did, challenge the constitutionality of the Guidelines pre-Booker, and reasoned that its waiver rule was not, therefore, unduly harsh.
King: Grief counseling not includable in restitution
In U.S. v. King, No. 04-14021 (11th Cir. June 30, 2005), the Court (Tjoflat, Kravtich, and Mills, b.d.) vacated and remanded a $21k order of restitution against a defendant convicted of attempted bank robbery based on the government's concession that more than $11k of the ordered restitution represented the bank's cost for providing grief counseling to its employees, something not authorized by the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A. However, on plain error review, the Court rejected Mr. King's claim that the ordered restitution violated his Sixth Amendment rights since the order was based on facts not admitted by him nor proven to a jury beyond a reasonable doubt. The Court noted that neither it nor the Supreme Court had held that Blakely/Booker applied to an order of restitution and that most of the other circuits had rejected such a claim. The Court thus concluded that Mr. King failed to demonstrate that the claimed error was plain.
Philipps: Attempt qualifies as drug conviction
In United States v. Phillips, No. 04-13720 (11th Cir. June 22, 2005), the Court (Carnes, Marcus, Kravitch) affirmed a seventy-month sentence imposed on a defendant who entered a plea of guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326. The Court resolved two issues of first impression in the Circuit. First, the Court rejected Mr. Phillips' claim that his prior state conviction for attempted sale of a controlled substance did not qualify as a drug trafficking offense under U.S.S.G. § 2L1.2. The Court noted that the commentary to § 2L1.2 expressly included "attempting to commit such [drug trafficking] offenses," in the definition of drug trafficking offenses that warrant a 16-level increase. Next, the Court rejected Mr. Phillips' claim that his state term of parole was prematurely terminated when he was deported. Mr. Phillips was released on parole in October 2002 and deported in December 2002. His term of parole was set to expire in February 2004. Mr. Phillips unlawfully reentered the United States in January 2004. The district court added two criminal history points to the guidelines calculation under § 4A1.1(d) because the offense was committed while Mr. Phillips was under a "criminal justice sentence." The Court noted that the commentary to that section defined a criminal justice sentence to include supervisory sentences "although active supervision is not required." The Court thus reasoned that Mr. Phillips' term of parole continued after his deportation even though he was not being actively supervised, and that the district court properly added the two criminal history points. Finally, the Court rejected a preserved Booker claim noting that enhancements based on prior convictions do not implicate the Sixth Amendment. As to the statutory Booker error, the Court held that the error was harmless because the district court had issued an identical 70-month alternative sentence in case the guidelines were voided.
Cartwright: Captain need not be sole captain
In United States v. Cartwright, No. 04-13398 (11th Cir. June 24, 2005), the Court (Anderson, Carnes, Pryor), affirmed the 87-month sentence for a defendant who entered a plea of guilty to conspiracy to possess with intent to distribute one thousand kilograms of marijuana and a detectable amount of hashish. Mr. Cartwright and two other men were intercepted by the United States Coast Guard aboard a vessel northeast of Cuba. The Court rejected Mr. Cartwright's contention that the district court improperly enhanced his guidelines sentence under U.S.S.G. § 2D1.1(b)(2)(B) finding that Mr. Cartwright "acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer" of the vessel in question. Mr. Cartwright argued that he was never officially named captain of the vessel and that he had no license or special skill as a captain. The Court rejected the invitation to establish a formal definition of captain or pilot of a vessel and instead noted that Mr. Cartwright's admissions (he was a lifelong fisherman, he drove the boat as it left Jamaica, he was driving the boat when it was intercepted, he followed instructions on where to steer the boat, and he used a compass to navigate) supported the enhancement. The fact that all three men took turns driving the boat on its voyage was immaterial. The Court also ruled that it lacked jurisdiction to review the district court's ruling on his Rule 35 motion which was filed on the same day as his notice of appeal because no independent notice of appeal was filed from the denial of the Rule 35 motion. Finally, on plain error review, the Court held that Mr. Cartwright failed to demonstrate that the Booker error affected substantial rights. [Note: The Court reviewed the Booker error for plain error even though Mr. Cartwright raised a Blakely claim in his Rule 35 motion.]
Mejia: Booker error was harmless
In U.S. v. Mejia-Giovani, No. 04-16138 (July 15, 2005), the Court (Anderson, Carnes, Pryor) held that any Booker error that occurred at sentencing in imposing a middle of the Guideline sentence was harmless, when the sentencing judge stated at sentencing that its patience was running thin with respect to the defendant's pattern of illegal re-entry, and warned of a possible upward departure. "Based on this record, we can say with fair assurance that Mejia-Giovani would not have received a lesser sentence in the absence of statutory [Booker] error."
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