Barnes: No Rule 33 Exception in AEDPA limitations period

In Barnes v. U.S., No. 05-10856 (Jan. 24, 2006), the Court held that the AEDPA one-year statute of limitations for filing a § 2255 motion is not tolled by the prior filing of a motion under Fed. R. Crim. P. 33 for a new trial. The Court noted that the language of AEDPA provides that the period commences when the judgment of conviction becomes final. A Rule 33 motion does not change that time period. The Court noted that it was for Congress to modify AEDPA to take account of Rule 33, but it would not engraft a Rule 33 exception on the statute.

Jones: no habeas relief for death sentence

In Jones v. Campbell, No. 04-11911 (Jan. 20, 2006), the Court denied habeas relief to an Alabama death row inmate sentenced to death for 1978 murders.
The Court rejected the ineffective assistance of counsel claims, finding that the alleged failure to investigate the defendant’s abusive childhood, mental health problems, and intoxication was not ineffective in view of the mixed evidence on these points, and the fact that the outcome would not have been different even if these avenues had been pursued.
The Court also rejected the argument that counsel was ineffective for failing to object to a deficient "malice" instruction, finding that the overwhelming evidence of murder of parents in the presence of their children rendered any error "harmless."
Finally, the Court rejected a claim of racial animus by a former defense lawyer toward his client as unpreserved, and found no evidence that this affected the representation.

Stevenson (Unpublished): Booker remand requires hearing

In U.S. v. Stevenson, No. 05-14504 (Jan. 17, 2006) (unpublished), the Court held that a district court erred in not granting a defendant a resentencing hearing, and an opportunity to allocute, following a remand for resentencing based on Booker error.
The Court stated: "although Stevenson’s guideline range was correctly calculated, the district court must still hold a hearing to consult the factors in 18 U.S.C. sec. 3553(a) as now required by Booker under an advisory guidelines system."

Prevo: Search at Prison Parking Lot ok

In U.S. v. Prevo, No. 04-15310 (Jan. 11, 2005), the Court (Anderson, Black, Carnes) held that no violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures occurred when a woman arriving in her vehicle at the parking lot of a correctional facility in Alabama to pick up an inmate was stopped, asked whether she had any weapons or drugs in the car, and then searched. The search uncovered a firearm in her purse and crack cocaine and a cocaine pipe in the trunk. The woman pled guilty to possession of the gun, but preserved for appeal a challenge to the constitutionality of the search.
The Court noted that prison authorities can use reasonable means to prevent weapons or other objects from being smuggled into prisons. The Court found that an unscheduled search, as here, of automobiles in the parking lot of a work release center did not infringe on the Fourth Amendment rights. The Court rejected Prevo’s argument that a search of person entering the facility was sufficient, noting that a "double-tier of deterrence" provided more security. The Court noted that even if Prevo was not intending to smuggle the gun and the cocaine into the facility, other prisoners who passed by might be so inclined. "At least where inmates have access to cars parked in prison facility parking lots, a search of the vehicle is reasonable."
The Court noted that Prevo’s privacy interest was lessened by the fact that she was visiting a prison, and because of signs warning visitors that cars entering the property were subject to search, and Prevo had seen these signs in her 7 previous visits to the facility.
The Court also rejected the argument that no search should have occurred once, upon being stopped, Prevo asked to be able to drive away. The Court noted that this would undermine the success of searches. The Court disagreed with the contrary rule of Gadson v. State, 668 A.2d 22 (Md. 1995).
The Court also found no problem of "unbridled discretion" of searching officers, pointing out that the search affected "all" vehicles which entered the parking lot that day.

Williams: 90-month sentence reasonable despite 188-235 Guideline range

In U.S. v. Williams, No. 05-11594 (Jan. 13, 2006), the Court (Tjoflat, Black, Marcus), on a government appeal, held that a 90-month sentence was "reasonable" despite the fact that the advisory Guideline range was 188-235 months. The Court therefore affirmed the sentence.
The defendant was convicted of possessing five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Because of two prior felony convictions, he was subject to a 188-235 month sentence under the career offender provision of the Guidelines. At sentencing the district court stated that such a lengthy sentence would not promote respect for the law or be proportional to the seriousness of the offense. The court stated that it could not "in good conscience" sentence the defendant to such a lengthy term.
Reviewing the sentence, post-Booker, for reasonableness, the Court noted that the district court had correctly calculated the Guideline range. The Court rejected the government’s argument that the district court had merely "incanted" the Guidelines while ignoring them, the Court pointed out that the district court had repeatedly stated that a 188 month sentence was unreasonable for a transaction involving $350 worth of drugs, and concluded that a 90-month sentence was "sufficient, but not greater than necessary" to punish Williams, in accord with 18 U.S.C. § 3553(a). The district court said that "normally" the policies of § 3553(a) are "encapsulated" in the Guidelines, but found that a mechanistic application of the Guidelines would not promote respect for the law in this case. The Court concluded that the district court gave "valid" reasons for its sentence, having correctly calculated the Guideline range. The Court found the sentence "reasonable" and affirmed the sentence.

Greer: Almendarez Torres requires adherence to ACCA mandatory minimum

In U.S. v. Greer, No. 05-11295 (Jan. 10, 2005), the Court (Black, Carnes, Pryor), affirmed a defendant’s conviction, and, on a government cross-appeal, reversed the district court’s decision that notwithstanding the ACCA minimum mandatory sentence of 15 years for anyone who violates 18 U.S.C. § 922(g) after three convictions for a violent felony or a serious drug offense, it could impose a 67-month sentence. The district court had reasoned that post-Apprendi/Booker, it had no authority to find the facts regarding a prior conviction which could support a sentence enhancement.
The Court noted that Almendarez-Torres v. U.S., 523 U.S. 224 (1998) and its progeny in the Eleventh Circuit had held that a district court is authorized to make findings relating to prior convictions, and that these findings did not violate the Sixth Amendment’s jury trial guarantee. The Court held that this holding extended not just to the fact of prior convictions, but to their nature as well, i.e. whether they qualified under § 922(g). The Court therefore vacated the sentence and remanded for resentencing.

Ndiaye: Affirming false social security docs. convictions

In U.S. v. Ndiaye, No. 04-11283 (Jan. 6, 2006), the Court (Tjoflat, Kravich & Mills, b.d.) affirmed convictions and sentences arising out of a large scale conspiracy involving identification and Social Security fraud.
The Court rejected arguments that the district court abused its discretion in refusing the allow the defense to call a co-conspirator to the stand. The Court agreed with the district court’s conclusion that much of the proffered testimony was irrelevant or "collateral" to the proceedings.
The Court also rejected the argument that a "deliberate indifference" instruction should not have been given. The Court recognized that such an instruction is appropriate only when there is evidence in the record showing the defendant purposely contrived to avoid learning the truth, but found that the giving of the instruction was harmless error where it does not affect the burden of proof beyond a reasonable doubt.
The Court also rejected the argument that the instructions concerning "knowingly and willfully" did not adequately inform the jury of the defense to these charges.
The Court further rejected challenges to the sufficiency of the evidence, noting that the jury "obviously" found the government witnesses credible. The Court rejected the argument that the offense of inducing an alien to enter or reside in the United States, 8 U.S.C. § 1324(a)(1)(A)(iv), could not involve aliens who had already entered the country. The Court noted that helping an alien obtain a (fraudulent) Social Security card "encourages" an alien to enter the United States, and noted that helping an illegal alien obtain a Social Security card was sufficient to support a conviction.
Turning to sentencing issues, the Court affirmed the imposition of an obstruction of justice sentence enhancement, based on the defense obtaining two false affidavits from witnesses. The Court noted that it did not matter that the defense never introduced these affidavits at trial because the enhancement applies to obstruction "during the course of the investigation." The Court noted that the witnesses were "influenced" by the defendant to make false statements in the affidavits. Alternatively, the enhancements were supported by one defendant telling his wife not to testify.

Washington: Enhancements and restitution based on fleeing into condo

In U.S. v. Washington, No. 05-10474 (Jan. 6, 2005), the Court (Carnes, Hull & Pryor) the Court upheld a "reckless endangerment" sentence enhancement under USSG § 3C1.2. The Court noted that Washington drove at a "high rate of speed" in his vehicle while to trying to elude police after his bank robbery, and entered an underground parking garage while people were coming in and getting onto the elevator.
The Court also affirmed the order of restitution to the Police Department and the Condominium Association, based on damage to a police vehicle, and to a building security gate, caused when the police attempted to follow Washington into the garage and broke the gate and damaged their vehicle. The Court recognized earlier precedent which had excluded from restitution coverage injury "as a result of" a defendant’s action, and limited losses to those underlying the offense of conviction (in this case, a bank robbery, not the subsequent chase). But the Court found that the Restitution Act had been amended in 2005 to include proximate harms. Hence, the prior cases were inapposite, and the district court correctly included the Police Department and Condominium Association losses in its restitution calculation.

Martinez: Sentence Reasonable

In U.S. v. Martinez, No. 05-12706 (Jan. 9, 2006), the Court (Tjoflat, Carnes, Hull) the Court rejected a Booker unreasonableness challenge to an 87-month sentence imposed on a defendant convicted of illegal reentry. The defendant had an extensive criminal history of violent crimes.
The Court first noted that it did have jurisdiction to review an appeal of a sentence for unreasonableness, finding such authority in 18 U.S.C. § 3742(a)(1), which confers appellate review for sentenced imposed in violation of law.
The Court "easily" concluded that Martinez’ sentence was reasonable. First, the 87-month sentence was one-third the length of the 20-year statutory maximum. Martinez admitted twice entering the country illegally. Further, the district court did not apply the Guidelines in a "presumptive manner." Rather, the court acknowledged that under § 3553(a) it is supposed to impose a sentence that is sufficient, but not greater than necessary to comply with the statutory purposes of sentencing."
The Court also rejected Martinez’ Due Process challenge to his sentence, citing prior cases rejecting similar arguments.

Gibson: No funeral for Almendarez-Torres, yet

In U.S. v. Gibson, No. 04-14776 (Jan. 4, 2006), the Court (Tjoflat, Barkett, Mills b.d.), on a government sentencing appeal, held that the district court erred when it concluded that under Blakely v. Washington it could not classify Gibson as a career offender because the government did not prove to a jury the drug-trafficking nature of Gibson’s prior convictions.
The Court pointed out that the Supreme Court has not yet overruled Almendarez-Torres, which held that a judge could make findings at sentencing regarding a defendant’s prior convictions. "Though wounded, Almendarez-Torres still marches on and we are ordered to follow. We will join the funeral procession only after the Supreme Court has decided to bury it." The Court rejected the argument that deciding whether a prior conviction was a drug conviction involved a "qualitative characterization" which was not permitted under Almendarez-Torres. The determination involves an issue of law, which a judge should make. The Court distinguished United States v. Spell, 44 F.3d 936 (11th Cir 1995), which limited the circumstances under which a court could look outside the judgment of conviction to determine the nature of a prior conviction. The Court pointed out that there was no ambiguity in this case about the drug-trafficking nature of Gibson’s prior offenses, and Spell was therefore inapposite.
The Court noted that district court erred in calculating Gibson’s guideline sentence, because it failed to comply with § 4B1.1, which assigns offense level 37 to a career offender. Further, the district court erred in its departure decision based on overrepresentation of criminal history, because, on this basis, it could only depart downward one-level across the horizontal axis of the Guideline. Further, if the Court wished to depart further, on the vertical axis, on another "unguided" basis, it had to state this basis on the record. Finally, the Court also had to state on the record its basis for a post-Booker non-Guideline sentence reduction, which it did not do.
The Court therefore vacated the sentence and remanded for resentencing.

Cain: Top of Guideline Sentence not Harmless Booker error

In U.S. v. Cain, No. 04-15754 (Dec. 29, 2005), the Court (Anderson, Black, Carnes) the Court held that Booker error was not harmless even when the district court imposed a sentence at the top of the Guidelines range.
After the jury convicted Cain of being a felon in possession of a firearm, at sentencing the district court imposed a sentence enhancement based on evidence, not presented to the jury, that the firearm in question was stolen. The government argued that any Booker error was harmless, because the district court imposed a sentence at the top of the Guideline range, which created an inference that it would have imposed the same sentence under an advisory, post-Booker, guideline system.
Rejecting this argument, the Court held that "inference alone" does not show an error was harmless, which requires the government to "point to a statement by the district court indicating that it would have imposed the same or a higher sentence if it had possessed the discretion to do so." In the absence of such a statement, the Court of Appeals does not know what the sentence would have been, and the error is therefore not harmless. The Court vacated the sentence and remanded for resentencing.