Nix: Resisting Arrest with Violence is "Violent Felony"

In U.S. v. Nix, No. 09-15335 (Dec. 30, 2010), the Court adopted its unpublished opinion in U.S. v. Hayes, and held that a prior Florida conviction for resisting an arresting officer with violence, in violation of Fla. Stat. § 843.01, qualifies as a “violent felony” of purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). The Court therefore found that Nix had the requisite three prior felony convictions and affirmed the 15-year sentence.

Gowdy: Violation of federal detainer is "escape"

In U.S. v. Gowdy, No. 09-15999 (Dec. 27, 2010), the Court held that, even though the defendant was never in federal prison, but only subject to a federal detainer after his federal conviction and sentencing, he could still be guilty of “escape from custody” under 18 U.S.C. § 751(a).

Gowdy was mistakenly released from State custody, at a time he was subject to a federal detainer to serve a federal sentence. Gowdy contended that his failure to turn himself in did not constitute “escape.”

The Court noted the “broad scope” of § 751(a), which reaches non-violent walkaways and failure to report for incarceration, or to return to custody. Here, Gowdy was in “constructive” federal custody by virture of a process issued under the laws of the United States by a federal district court. It did not matter that he was not “physically confined in an institution at the time of escape.”

Rodriguez: Unauthorized Access of Computer

In U.S. v. Rodriguez, No. 09-15265 (Dec. 27, 2010), the Court affirmed a conviction for unauthorized accessing of a computer database, in violation of 18 U.S.C. § 1030(a)(2)(B).

Rodriguez was an employee of the Social Security Administration who made unauthorized use of Social Security computer databases to obtain personal information about persons he knew. The defendant claimed that his conduct did not violate the statute because he did not use the data for financial gain, or to commit a crime. The Court rejected the argument, pointing out that the (misdemeanor) statute criminalizes the unauthorized accessing of databases, and does not require financial gain, or commission of a crime.

Rodriguez also challenged the upward variance he received as unreasonable. The Court found that a variance was warranted by the number of victims and the extensive nature of Rodriguez’ unauthorized access.

Powell: District Court Must Hold Live Hearing to Reverse Magistrate Judge Credibility Determinations

In U.S. v. Powell, No. 09-11612 (Dec. 27, 2010), the Court vacated a conviction because the district judge declined to adopt a Magistrate Judge’s report and recommendation without holding a hearing.

Powell moved to suppress statements he made following his arrest, claiming that he was not read his Miranda rights after he requested counsel. A Magistrate Judge held an evidentiary hearing. After hearing the conflicting testimony of government and defense witnesses, the Magistrate Judge credited the defense accounts, and found the government’s witnesses “unconvincing.” The Magistrate Judge recommended a ruling in favor of Powell’s motion to suppress. The government filed objections with the district court. The district court, without holding a hearing, but after listening to a recording of the hearing before the Magistrate Judge, overruled the Magistrate Judge, and denied the motion to suppress.

The Court held that when a district court squarely rejects the credibility findings of a Magistrate Judge, it must hear the disputed testimony live. The Court therefore vacated Powell’s conviction, and remanded the case. The Court noted that the district court remained free to reject the Magistrate Judge’s determinations in whole or in part after holding a new hearing.

Pilati: SORNA Registration is based on conduct

In U.S. v. Pilati, No. 09-11978 (Dec. 17, 2010), the Court held that an Alabama District Attorney defendant convicted of depriving persons of their civil rights, in violation of 18 U.S.C. § 242, by fondling genetalia during searches, including a search of a minor, could be required to register as a sex offender under SORNA.

The Court first noted that because Pilati had consented to trial by jury presided over by a Magistrate Judge, after the jury convicted he waived all issues that he did not appeal to the district court pursuant to 18 U.S.C. § 3402.

With regard to the SORNA registration issue, the Court noted that the SORNA registration requirement applied based on the nature of the conduct underlying an offense, not based on whether the statute of conviction was a civil rights violation or a sex offense. Here, the unobjected-to facts were that Pilati’s conduct involved a sex offense against a minor. SORNA registration could therefore be required.

Cone: Non-parties lack standing in criminal case

In U.S. v. Cone, No. 09-13824 (Dec. 17, 2010), the Court held that once the district court vacated its preliminary order of forfeiture, non-parties to the criminal proceeding lacked standing to challenge the district court’s vacatur of the order of forfeiture. The Court noted that once the district court vacated the forfeiture order, nothing remained at stake in the criminal case for the non-parties, and they therefore lacked standing. The Court therefore dismissed the appeal, for lack of jurisdiction.

Digsby: Appellate Counsel Not Ineffective

In Digsby v. McNeil, No. 09-10978 (Dec. 7, 2010), the Court affirmed the denial of habeas relief to a Florida inmate who claimed that his appellate lawyer was ineffective for failing to raise a collateral estoppel claim in his state direct appeal.

At a first trial, Digsby was acquitted of aggravated battery. At a second trial involving the same incident, Digsby was convicted of unlawful firearm possession. Digsby claimed that his appellate lawyer was ineffective in failing to argue on appeal that because the jury that acquitted determined that Digsby never possessed a firearm, collateral estoppel barred his conviction for firearm possession arising out of the same incident.

The Court found, however, that while the jury that acquitted might have found that Digsby did not possess a firearm, it did not “necessarily” so find. The jury might have concluded that the firearm accidentally went off, while in Digsby’s possession, and therefore acquitted him of aggravated battery. If so, Digsby would have nonetheless possessed the firearm – and been liable for unlawful firearm possession. His appellate counsel was therefore not ineffective in failing to raise this claim on direct appeal.

Williams: "Incredible" story warrant obstruction of justice enhancement

In U.S. v. Williams, No. 09-10091 (Dec. 8, 2010), the Court agreed with the government that the district court erroneously declined to impose a sentence enhancement for obstruction of justice, and erroneously granted an acceptance of responsibility sentence reduction.

The Court Williams testified at trial that he did not know that he had rammed the vehicle of U.S. Marshals who had come to arrest him on pending charge, and believed that the Marshalls were carjackers. The Court noted that the jury “for good reason” had rejected Williams’ “incredible” testimony. An obstruction of justice enhancement was therefore warranted.

The Court also ruled that Williams was not entitled to an acceptance of responsibility reduction, because he had gone to trial, put the government to its proof, and insisted he was innocent in the face of overwhelming evidence to the contrary.

Gooden: District Court Failed to give recharacterization notice

In Gooden v. U.S., No. 09-10499 (Dec. 8, 2009), the Court held that the district court improperly dismissed Gooden’s motion to compel a reduction of sentence for substantial assistance. The district court had dismissed the motion on the ground that it was an untimely 28 U.S.C. § 2255 motion, and was an unauthorized “second and successive” motion. Prior to this motion, the inmate had filed a “motion to modify” his sentence, which the district court had recharacterized as a § 2255 motion. However, in so recharacterizing the inmate’s motion, the district court failed to give the inmate notice of the recharacterization and its adverse consequences on future § 2255 motions, as required by Castro v. U.S., 540 U.S. 375 (2003). Because of the district court’s initial failure to give notice of recharacterization, it could not now dismiss Gooden’s latest motion for being second or successive. The Court rejected the government’s argument that notice of recharacterization need not be given when a motion is untimely. The Court explained that future events can render a § 2255 motion timely, and that the notice is therefore necessary to alert a defendant to his options.

Puatti: Joint Penalty Phase Was Appropriate

In Puiatti v. McNeil, No. 09-15514 (Nov. 29, 2010), the Court denied habeas relief to a Florida death row inmate convicted of a 1983 murder.

The Court rejected the argument that Puiatti was denied an individualized sentencing determination because the jury considered whether to impose a death sentence on him along with his co-defendant. The Court noted that Puiatti and his co-defendant presented “similar” mitigation theories. The Court added that in this case a joint penalty phase was “particularly appropriate” because the defendants committed the murder together.

Forey-Quintero: Defendant is Alien, Not a Citizen

In U.S. v. Forey-Quintero, No. 09-15330 (Nov. 30, 2010), the Court affirmed a conviction for unlawful re-entry into the United States, in violation of 8 U.S.C. § 1326(a). The sole issue in the case was whether Forey-Quintero could not guilty of this offense because he previously had acquired derivative citizenship by virtue of his mother’s naturalization when he was under the age of 18. The Court found that because Forey-Quintero did not have lawful permanent resident status at the relevant time under the applicable immigration statute, he did not acquire derivative citizenship, but was an alien, and therefore was guilty of unlawful re-entry.

Turner: Affirming 300-month sentence for child pornography possession

In U.S. v. Turner, No. 09-15074 (Nov. 17, 2010), the Court affirmed a 300-month sentence imposed on a defendant convicted of receiving child pornography, in violation of 18 U.S.C. 2252(a)(2), and possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

The Court rejected the argument that the five-level enhancement for engaging in “a pattern of activity involving the sexual abuse or exploitation of a minor” should not have applied. The Court noted that Turner molested a very small child, and was convicted of first degree sexual abuse in 1990. The Court noted that the Guideline did not require a connection between the past sexual abuse and the current offense. Here, the evidence established a pattern because Turner abused the child “numerous times.” The fact that the sexual abuse was remote in time did not preclude it from being a basis for the USSG § 2G2.2(b)(5) enhancement.

The Court also found the sentence to be substantively reasonable. The 300-month sentence was a 90-month variance above the high end of the Guidelines. The Court noted that the offenses were “extremely serious” because receiving and possessing child pornography encourages the victimization of children. But cf., e.g., U.S. v. Grober, __F.3d __ (3rd Cir. Oct. 26, 2010) (affirming downward variance to 60 months, for child pornography offender; district court reasonably concluded that 235-292 Guideline range lacked empirical justification); U.S. v. Dorvee, 616 F.3d 174 (2d Cir. 2010) (reversing 240-month sentence for child pornography offender, because Guidelines lack empirical support).

The Court also noted that Turner “poses a more serious threat to society than many child pornography defendants given his history of actually abusing a small child and the increased recidivism of child sexual abusers.

Davis: No Authority to Issue COA

In Davis v. Terry, No. 10-14534 (Nov. 5, 2010), the Court denied a request for a certificate of appealability (COA) from a district court’s denial of a request for a COA. The Court noted the case’s procedural history: after the Court had denied an application to file a second or successive habeas petition, after the Supreme Court, exercising original habeas jurisdiction over Davis’ petition in the Supreme Court, had transferred the case to district court to conduct an evidentiary hearing on Davis’ claim of innocence, and after the district court held a hearing and denied relief, Davis sought a COA to appeal the district court’s ruling. The Court held that because, after its original denial of a COA, there was no further review provided by law, it had no authority over his application.

Lambrix: Denial of Application for Second or Successive Habeas Petition

In In re Lambrix, No. 10-14476 (Oct. 26, 2010), the Court denied the application of a Florida death row inmate, convicted of a murder that occurred in 1983, for leave to file a second or successive habeas corpus petition.

The Court noted that the standard for a second or successive petition was a showing that facts could not have been discovered earlier, and that, but for a constitutional error, no reasonable factfinder would find the defendant guilty. Lambrix relied on the recantation of one of the prosecution’s witnesses. The Court noted that the recantation could have been discovered earlier, and that reasonable factfinders could still have found Lambrix guilty. The Court found Lambrix’s other allegations to similarly lack merit.

Wayerski: Child Pornography Conspiracy Conviction Duplicative

In U.S. v. Wayerski, No. 09-11379 (Oct. 26, 2010), the Court held that convictions of defendants for both engaging in a child exploitation enterprise, in violation of 18 U.S.C. § 2252A(g), and in a child pornography conspiracy, in violation of 18 U.S.C. § 2252A, were unduly duplicative, in violation of Double Jeopardy, but otherwise affirmed all convictions.

To avoid unconstitutional duplicativeness, a criminal conviction must involve proof of a fact that another conviction does not involve. Here, the “in concert” element of the exploitation enterprise offense involved the same proof of agreement that the conspiracy offense involved. Therefore the two convictions were duplicative. The Court therefore vacated the conspiracy convictions and remanded for resentencing.

The Court, however, rejected a vagueness challenge to the child exploitation statute. The Court noted that the statute, which criminalizes commission of several enumerated child pornography felonies, on three or more separate instances, involving more than one victim, in concert with three or more other persons, squarely applied to the defendants elaborate and secret scheme for using the internet to share images of child pornography. The Court noted that one to whose conduct a statute squarely applies may not successfully challenge it for vagueness. Thus, the Court found unpersuasive the defendants’ hypothetical that one could violate the statute in a manner of seconds by exchanging images over the internet.

Turning to sentencing, the Court rejected the argument that, because the defendants’ conduct in avoiding detection occurred before arrest, an obstruction of justice enhancement should not have been imposed. The Court pointed out that the obstruction of justice enhancement covers conduct that occurred prior to arrest, and prior to the start of an investigation.

The Court rejected one defendant’s argument that the district court erred in finding that he posed a risk to the community if released from prison, because a defense psychologist testified otherwise at sentencing. The Court noted that the district court relied on other evidence, including the defendant’s diaries, which the psychologist may not have reviewed. The Court found that the 360 and 365 months sentences imposed on two defendants were not excessive, noting the “harm caused by caused by child pornography offenses.”

Mateos: Medicare Fraud Convictions and Sentences Affirmed

In U.S. v. Alvarez, No. 08-17178 (Oct. 19, 2010), the Court affirmed Medicare fraud convictions and sentences.

The Court agreed with defendant Alvarez that the district court erred when it excluded a recorded statement made by one Medicare conspirator to Alvarez that “there’s no fraud whatsoever here” – a statement that indicated that Alvarez was not privy to the scheme. The statement was not hearsay, because Alvarez did not seek to admit it for its truth, but to show that Alvarez was not aware of the fraud. It therefore did not matter whether, as the district court found, the statement did not fit within a hearsay exception, because the statement was not hearsay in the first place.

However, the error in excluding the recorded statement was harmless because the statement was effectively admitted through witness testimony.

The Court found no error in the district court’s admission of evidence that co-defendant Mateos had been married to a ringleader of the fraud. The Court did not find this evidence so “inflammatory” as to render the district court’s cautionary instruction ineffective.

Turning to sentencing, the Court found that the 30-year sentence imposed on Alvarez was not outside the range of reasonable sentences. The Court recognized the “troubling” disparity with lesser sentences imposed on more culpable co-conspirators. However, these defendants provided substantial assistance to the government. In addition, the Court found that the district court’s reasons for an upward variance were justified: Alvarez was a doctor who breached her position of trust; the fraud lasted over a period of months; Alvarez followed a lower standard of care with regard to the health of her patients; Medicare fraud was rampant in the Miami area; Alvarez “blatantly lied” during her testimony at trial and showed “no remorse.” In addition, Congress recently amended the Sentencing Guidelines for Medicare fraud, and under the new Guidelines Alvarez’ 30-year sentence fell at the high end of the Guidelines.

The Court rejected Mateos’ argument that the district court erroneously found her responsible for the entire intended loss (more than $9 million). The evidence showed that Mateos was aware of the essence of the fraud, and the district court therefore held her responsible for losses stemming from all reasonably foreseeable acts of coconspirators.

Kobal: Absence of brain damage evidence did not warrant habeas relief

In Kokal v. Sec. Dep’t of Corrections, No. 08-11722 (Oct. 18, 2010), the Court denied habeas relief to a Florida inmate sentenced to death for the 1983 murder a sailor.

The Court rejected Kobal’s argument that his lawyer was ineffective for failing to conduct an investigation that would have revealed Kobal’s brain damage. The Court found that the Florida Supreme Court, in previously balancing the aggravating and mitigating factors, had not weighed the factors unreasonably in concluding that Kobal was not prejudiced by the lack of evidence of brain damage. The Court noted the “heartless” nature of the murder, and that, even had Kobal presented evidence of brain damage (which the Court found weak), he would also have presented evidence of his substance abuse on the night of the crime, a two-edged sword.

Sistrunk: Entrapment is affirmative defense to felon in possession charge

In U.S. v. Sistrunk, No. 09-12798 (Oct. 7, 2010), the Court affirmed a conviction for being a felon in possession of a firearm.

Citing U.S. v. Deleveaux, the Court recognized that, like the defense of justification, the defense of entrapment can be raised in a felon-in-possession case, as an affirmative defense, to negate criminal liability even though the prosecution has proven all the elements of the offense. The district court therefore erred in ruling that this defense was not available to Sistrunk. However, the error in failing to give the instruction was harmless because the facts did not warrant the instruction: the government merely presented Sistrunk with an “attractive” opportunity to rob a stash house, but did not engage in “excessive pressure or manipulation.”

Gomes: FSA does not apply to pre-FSA case

In U.S. v. Gomes, No. 10-11225 (Oct. 1, 2010) (Tjoflat, Barkett, Fay), the Court held that the district court committed no error when it imposed the then-applicable statutory mandatory minimum of 120 months on a defendant convicted of trafficking in more than 50 grams of crack cocaine. The Court found that the recently enacted Fair Sentencing Act, which increased the crack cocaine quantities required to qualify for this statutory mandatory minimum punishment, did not change the result, because the Act took effect after the defendant committed his crime, and the saving clause, 1 U.S.C. § 109, bars the Fair Sentencing Act from affecting the punishment.

Bauder: Ineffective Misadvice on civil commitment consequences

In U.S v. Bauder, No. 10-10657 (Sept. 13, 2010), the district court affirmed the grant of habeas relief to a Florida inmate convicted of aggravated stalking. Prior to his plea, Bauder's state lawyer told him that he could not face involuntary civil commitment under Florida law. This was misadvice: after Bauder finished his sentence on the plea, the State moved to have him committed and he was then committed. The Court found that counsel's advice was ineffective assistance, and that it was prejudical.

Williams: gunshot in public housing project is basis to pull over quickly exiting vehicle

In U.S. v. Williams, No. 10-10612 (Sept. 13, 2010), the Court held that a police officer did not violate the Fourth Amendment when he pulled over the defendant’s vehicle after it quickly pulled out of a public housing project, known to be a high crime area, from which the officer had just heard a gunshot. The district court therefore did not err in declining to suppress the firearm found in Williams’ vehicle.

The Court relied on cases in the Fifth and Tenth Circuits which held that a police officer was acting on more than a “hunch” in like circumstances. In such circumstances, an officer has a reasonable suspicion to pull over the vehicle – sufficient reason under Terry v. Ohio to withstand a Fourth Amendment challenge.

Darling: Denial of Certificate of Appelability

In Darling v. Sec. Dep’t of Corrections, No. 10-13408 (Sept. 14, 2010), the Court denied a certificate of appealability to a Florida death-row inmate. The Court noted that a certificate of appealability is not available to appeal a district court’s denial of habeas corpus relief unless the petitioner shows that reasonable jurists could debate the decision.

Here, the prosecutor’s potentially erroneous closing argument suggestion that certain mitigating factors could require imposition of the death penalty was cured by the trial court’s instructions on this point.

In addition, though Darling claimed counsel was ineffective for failing to put on mitigating evidence about his background, evidence on this point was “inconclusive.”

Finally, although Darling argued that the Vienna Convention was violated when Florida failed to contact the Bahamian Embassy upon his arrest, the Court found no authority indicating that such a violation could invalidate an otherwise valid conviction and sentence.

Because reasonable jurists could not debate these points, Darling did not qualify for a certificate of appealability.

McGill: Possession of Shotgun not "Violent Felony"

In U.S. v. McGill, No. 09-14167 (Sept. 8, 2010), on a government appeal, the Court held that a defendant’s prior Florida State conviction for unlawful possession of a short-barreled shotgun did not qualify as a prior “violent felony” for purposes of the 15-year mandatory minimum 18 U.S.C. § 924(e)(1), the Armed Career Criminal Act (ACCA).

The Court noted that Begay governed whether the prior conviction qualified as a “violent felony.” The question therefore was whether possessing an outlawed short-barreled shotgun is “roughly similar, in kind as well as degree of risk posed, to burglary, arson, extortion and the unlawful use of explosives.” The Court noted that, like explosives, short-barreled shotguns are regulated by the National Firearms Act (NFA). The Court pointed out that ACCA referred to the “use” of explosives, not mere possession, as a qualifying offense. The Court reasoned that if Congress required the “use” of explosives, not mere possession, as a qualifying ACCA offense, it would also intend to require the “use” and not the mere possession of a short-barreled shotgun, another NFA-regulated weapon. The Court concluded that McGill’s possession of a short-barreled shotgun did not qualify as a “violent felony.”

Rainier: Service Station Burglary Counts as Violent Felony

In U.S. v. Rainier, No. 09-14014 (Aug. 31, 2010), the Court held that a defendant’s two prior Alabama burglaries each qualified as a “violent felony” for purposes of his sentence enhancement under the Armed Career Criminal Act (ACCA).

The Court agreed with Rainier that his prior Alabama third-degree burglary was not a “generic burglary” because Alabama defined this offense to include burglary of a vehicle, aircraft or watercraft – whereas a generic burglary involves the burglary of a building. However, under the “modified categorical approach,” a prior non-generic burglary can still qualify as a violent felony if certain record documents established that the crime involved the burglary of a building. Here, the charging documents showed that Rainier burglarized a service station and a shoe store. Thus, the offenses involved a building, and therefore qualified as violent felonies.

Di Pietro: Immigration Marriage Law Not Void for Vagueness

In U.S. v. Di Pietro, No. 09-13726 (Aug. 27, 2010), the Court affirmed a conviction for aiding and abetting individuals to enter into marriage for the purpose of evading federal immigration laws, and rejected constitutional challenges to 8 U.S.C. § 1325(c).

The Court rejected a void for vagueness challenge to the law, pointing out that Di Pietro conceded that the law was not vague as it applied to her. She could not challenge the law as it applied to others. The Court recognized that certain First Amendment “overbreadth” challenges can be raised by one person for others. Here, however, Di Pietro was raising a void for vagueness challenge, and her arguments did not implicate sufficiently “weighty” concerns for others to support her going forward on her challenge.

The Court also rejected the argument that the immigration law unconstitutionally preempts Florida’s marriage law. The Court noted that, to the extent there was a conflict, federal law would invalidate state law. Moreover, there was no conflict: the federal law was like other criminal laws that involve the use of legal means for illegal purposes.

Zaldivar: Alien Smuggling Enhancement for Death on Board

In U.S. v. Zaldivar, No. 09-12035 (Aug. 24, 2010), the Court affirmed a ten-level sentence enhancement for a defendant convicted of alien smuggling, based on the death of one of the aliens.

The alien died as a result of injuries sustained when the boat he was on was being chased by a Coast Coard cutter on the high seas. The defendant stated that he was not the person who operated the boat when it was fleeing from the Coast Guard, and that he requested the driver to stop for the Coast Guard. The Court noted that the relevant conduct for the offense included all “foreseeable” actions that could result in death. The Guidelines do not require that an individual’s actions be the proximate cause of the death. Here, the death was foreseeable because Zaldivar participated in the illegal transportation of 32 Cubans in an overcrowded boat that was designed to travel at high rates of speed. The boat did not contain enough life preservers for all its passengers. It was traveling in the dark, without headlights, to avoid detection. Weather conditions on the open seas have the potential to deteriorate. It was foreseeable to Zaldivar that the operator of the boat would attempt to evade interdiction by fleeing at a high speed.

The Court also found that Zaldivar had not established that he was entitled to a sentence reduction based on his claim that he was involved in alien smuggling for a reason “other than for profit.” The Court noted that Zaldivar’s family was not on the boat, and that aliens who were on the boat stated that they expected to pay for the trip.

Johnson: Counsel not ineffective in failing to call prison expert

In Johnson v. Upton, No. 09-16090 (Aug. 23, 2010), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1994 murder.

The Court rejected the claim that counsel was ineffective for failing to call a penological expert who would have testified, at the penalty phase of Johnson’s trial, that, statistically inmates who serve long prison sentences (instead of being sentenced to death) do not present a future danger because of their tendency to adjust to prison life. The Court found that evidence of Johnson’s own history of having attacked a jailer, and escaped, would undermine the expert’s testimony. Moreover, the statistical evidence was not conclusive. Further, it would have assumed that Johnson would be classified as a high security inmate, a fact unhelpful in mitigation.

The Court also found that any of the claimed ineffective assistance would not have prejudiced Johnson in the penalty phase, in view of the particularly gruesome nature of the murder, and Johnson’s subsequent assault when he escaped from jail.

Bellizia: Ineffective Counsel for Failing to argue heroin was not weighed

In Bellizia v. Dep’t of Corrections, No. 09-13838 (Aug. 20, 2010), the Court affirmed the grant of habeas relief to a Florida inmate because his defense counsel was constitutionally ineffective in failing to challenge the State’s failure to weigh each of the pellets of heroin found on Bellizia..

The Court noted that under Florida caselaw, which had been controlling law for many years, visual examination of drug packages is insufficient to determine the weight of the package. The State must weigh and test every package. Here, the State failed to weigh the drugs and Belizia was sentenced to a 22-year term based on an estimate of the weight of the drugs. No competent counsel would have failed to argue that the weight was illegally calculated.

Chirino-Alvarez: Alien Smuggler Participated Throughout

In U.S. v. Chirino-Alvarez, No. 09-11317 (Aug. 23, 2010), the Court rejected sufficiency of the evidence challenges to alien-smuggling convictions.

Citing the Ninth Circuit’s en banc decision in U.S. v. Lopez, the Court recognized that the evidence would be insufficient if Chirino-Alvarez’ participation in the alien-smuggling scheme occurred only after the aliens arrived in the United States. However, the Court found that based on the evidence, including admissions to an undercover agent, the jury could reasonably infer that Chirino-Alvarez “was involved in the scheme throughout.”

The Court declined to reach Chirino-Alvarez’ challenge to the Guideline computation of his sentence, noting that he was sentenced to a statutory mandatory minimum, and that any error in the Guideline calculation was therefore harmless.

Kottwitz: Good Faith Reliance Instruction Should Have Been Given

In U.S. v. Kottwitz, No 08-13740 (Aug. 19, 2010), the Court held that the evidence was insufficient to sustain some tax fraud charges, and that a new trial was required on others because the district court denied a special instruction regarding the defendants’ good faith reliance on their accountant’s advice.

The Court found that the evidence was sufficient to show that the owners of a closely held corporation fraudulently failed to report to the IRS as personal income moneys received from their corporation to pay for personal expenses, such as suits, night-club visits, and landscaping fees. However, as to this conduct, the district court erred in not failing to give the good faith reliance instruction requested by the defense, because it was supported by evidence that the defendants (1) provided all material information to their accountant, (2) and relied on their accountant’s advice and decisions.

As to other counts of conviction, the Court found no evidence to support them, and therefore vacated those convictions.

Newman: Taking Child to Yemen Not "Otherwise Extensive" Offense

In U.S. v. Newman, No. 09-14557 (Aug. 17, 2010), the Court affirmed the imposition of a sentence enhancement under USSG § 2J1.2(b)(2) for “substantial interference with the administration of justice.” Newman was convicted of removing his child outside the United States with the intent to obstruct the other parent’s lawful exercise of parental rights. The enhancement was based on Newman’s “self-help” reaction in response to a state court custody order. The Court rejected the argument that this basis created a “per se rule” that the enhancement would apply in all custody cases where an order has issued. It is the nexus between Newman’s dissatisfaction with the custody determination and his intent to frustrate it, not the order itself, that renders the enhancement applicable.

The Court reversed a § 2J1.2(b)(3) enhancement that had been based on a finding that because Newman took the child to Yemen, the offense was “otherwise extensive in scope, planning, or preparation.” The Court noted that nothing in the record supported a finding that Newman took his son to Yemen because it would be difficult to find him there. Rather, the evidence indicated that Newman went to Yemen for “religious and cultural reasons.”

The Court also rejected the argument that the duration of the removal counted as “extensive.” The Court held that “duration” is a separate aspect of an offense from “scope.”

Villarreal: 10-year delay not speedy trial violation

In U.S. v. Villarreal, No. 09-11348 (Aug. 13, 2009), the Court rejected a constitutional speedy trial right challenge to an indictment, and affirmed a 328-month sentence on a defendant convicted of trafficking in more than 10,000 kilograms of marijuana.

The Court recognized that because the defendant was arrested ten (10) years after the indictment was filed, the delay was “clearly” presumptively prejudicial. However the Court found that (1) Villarreal engaged in evasive tactics to impede the government’s efforts to arrest him, although this factor did not weigh heavily in the government’s favor because of “gaps in the government’s efforts to locate Villarreal,” (2) Villarreal knew that the government was seeking to arrest and prosecute him for charges stemming from a Florida drug bust, (3) Villarreal failed to show actual prejudice from the delay – he did not show how missing business records would help his case, and the government suffered prejudice in locating witnesses for trial. On balance, the factors weighed against a speedy trial violation.

Turning to sentencing, the Court found that the witnesses who testified about marijuana purchases from Villarreal supported the quantity attributed to him. The evidence also supported a leadership role enhancement, and an enhancement for constructive possession of a firearm. The 328-month sentence fell within the Guideline range and was reasonable.

Jackson: 3582(c)(2) does not encompass safety-valve

In U.S. v. Jackson, No. 08-13645 (Aug. 9, 2010), the Court held that a defendant cannot obtain a safety-valve sentence reduction at a resentencing under 18 U.S.C. § 3582(c)(2).

The Court noted that the safety-valve statute references findings “at sentencing.” A § 3582(c)(2) proceeding is not a “sentencing,” but a limited resentencing. The Court noted the policy statements of the Sentencing Guidelines which provided that § 3582(c)(2) resentencings leave other guideline application decisions “unaffected.”

The Court recognized that its holding created a conflict with the contrary decisions of the Eighth and Sixth Circuits, which have held that the safety-valve does apply in § 3582(c)(2) proceedings.

Epps: Pillowcase not protected by Fourth Amendment

In U.S. v. Epps, No. 09-12285 (Aug. 6, 2010), the Court rejected a Fourth Amendment challenge to the police’s seizure of the contents of a pillow case.

The defendant was running away after a bank robbery, pointing a gun toward the police. A police officer in a police car stopped him by hitting him with the front of his patrol car. The defendant rolled off the car’s hood and the gun and pillow case he was holding “went flying.” The pillow case had some pink stains – suggestive of the dye pack that had stained cash stolen during a bank robbery. The police searched the pillow case and found, inter alia, currency marked with a red dye.

The Court found no Fourth Amendment violation in the search of the pillow case. The Court noted that the pink stains were indicative of an exploding dye pack. The Court found that the contents of the pillow case could be inferred from its outward appearance, and therefore fell outside the ambit of Fourth Amendment protection.

The Court found no improper vouching in the prosecutor’s statement during closing argument that “somebody else” – a witness who had not testified -- was present with the testifying police officer when Epps confessed to police.

Epps: No Fourth Amendment Protection for I

Mills: Mandatory Minimum Crack Offenders Not Eligible for Crack Amendment Reductions

In U.S. v. Mills, No. 08-11760 (Aug. 5, 2010), the Court rejected the argument that defendants convicted of a crack cocaine offense who were originally subject to mandatory minimum sentences, but received substantial assistance sentence reductions below the mandatory minimums, could, in a proceeding for reduction of sentence under 18 U.S.C. § 3582(c)(2), get the benefit of the Sentencing Commission’s 2007 amendment to the crack cocaine Guidelines.

The Court reasoned that the defendants were ineligible for the Guideline amendments, because their original sentences were based on the statutory mandatory minimum. The Court noted that in U.S. v. Moore it had held that career offenders were categorically ineligible for the Guideline amendment reductions. Further, in U.S. v. Williams, it had held that a defendant was ineligible for the Guideline amendment reductions because he was sentenced to a mandatory minimum under the drug statute, based on his two prior convictions. The Court rejected concerns about the “arbitrariness” of its result: “To the extent that defendants believe that . . . the Guidelines led to ‘arbitrary’ results in their cases, their redress is with Congress and the mandatory minimum sentences for drug offenses it has set.”

Irey: En Banc reversal of child molester sentence

In U.S. v. Irey, No. 08-10997 (July 29, 2010) (en banc), the Court reversed as substantively unreasonable a sentence of 210 months, below the Guidelines advisory sentence (and statutory maximum) of 360 months, because the district court failed to adequately punish a sex offender convicted of coercing minors to engage in sexually explicit conduct outside the United States, in violation of 18 U.S.C. § 2251(c).

The Court noted that, contrary to other Circuits, it found no “parsimony principle” in 18 U.S.C. § 3553(a)’s instruction to impose a sentence “sufficient, but not greater than necessary,” to achieve the listed sentencing purposes. The Court stated that the statute is “result neutral.”

The Court noted that the government did not appeal any of the district court’s findings of fact. The Court therefore assumed that these findings were correct. But if found a number of legal errors in the district court’s weighing of the sentencing factors.

The Court faulted the district court for stating that Irey was a “victim” when he was a predator. This finding “tainted its weighing of the § 3553(a) factors.”

The Court also faulted the district court for stating that pedophilia was an illness, noting that just as there is a line between alcoholism and driving under the influence, there is a line between pedophilia and child molestation. The district court erred in reducing Irey’s sentence because Irey’s offense was only partly volitional, and this error warranted “closer review” of the sentence.

The Court also faulted the district court for relying on a finding that Irey was a good family man, and good to his community. The Court equated this to finding that Ted Bundy was a valuable member of his community, and that “but for his taste for human flesh and how he satisfied it, Jeffrey Dahmer was not so bad.” The Court noted that Irey’s family support for him, while admirable, was not supported by the record. The Court also faulted the district court for relying on Irey’s age, finding his age no different from those of other persons in middle age convicted of serious crimes.

The Court also noted the “horrific” nature of the multiple crimes, pointing out that the 210 months sentence would amount to only 4 months and a week punishment for each of the 50 children Irey raped, sodomized or tortured.

The Court pointed out that the 210 months was just 30 months more than Irey would have received had he been convicted of taking a single obscene photograph of a minor.

Turning to deterrence, the Court faulted the district court’s “idiosyncratic doubts” about whether pedophiles could be deterred from committing crimes. The Court noted these views conflicted with the policy judgments of Congress. The Court added that age, for this offense, did not reduce the risk of recidivism.

The Court noted that the district court imposed a lifetime of supervised release, but stated that supervised release does not offer the level of protection of incarceration.

The Court noted that the Guidelines sentence was life, reduced to 30 years on account of the statutory maximum. The Court further noted a number of Guideline provisions that counseled against sentence reductions based on some of the factors the district court cited, for example, the instruction not to depart downward on account of diminished capacity when the offense is violent. The Court found that the district court “ignored” the advisory Guidelines, contrary to § 3553(a) instruction that they be considered.

Turning to sentencing disparity, the Court reviewed a number of cases, and found that Irey’s sentence fell below sentences for other child sex offenders. The disparity resulted from the fact that Irey received a reduction that he should not have received.

The Court disagreed with the district court that its sentence would promote respect for the law. “Nothing less than the advisory guidelines sentence of 30 years, which is the maximum available, will serve the sentencing purposes set out in § 3553(a).”

Tome: One-year internet ban affirmed

In U.S. v. Tome, No. 09-16486 (July 27, 2010), on review of a revocation of supervised release, the Court upheld the imposition of a 24-month sentence and a one-year internet ban as a condition of additional supervised release.

The defendant, after admitting to possession of computer disks containing over 100,000 images of child pornography and being convicted of possessing child pornography, was released on supervised release. While on supervised release, Tome violated his conditions by, inter alia, sending a letter to an inmate graphically describing having sex with children, falsely denying internet usage, and associating with persons convicted of child pornography offenses. In addition, the probation officer stated that during his sex offender treatment sessions Tome was “lacking in motivation, defensive and arrogant.” The Court found that the district court acted within its discretion in imposing the maximum 24-month term, and in prohibiting Tome from using the internet for one year. The Court noted that Tome had not established that his “odd jobs” required internet usage.

Hall: Teenager's Confession Not Coerced

In Hall v. Thomas, No. 09-12729 (July 20, 2010), the Court denied habeas relief to an Alabama inmate sentenced to life imprisonment for robbery and kidnaping.

The Court found that Hall, a juvenile, gave a voluntary confession. The Court recognized that Hall’s father was not present when his son was questioned by police, and that Hall claimed his confession was coerced, but noted that Hall’s audiotaped statement showed that he waived his Miranda rights, and indicated no coercion.

The Court also rejected ineffective assistance of counsel claims, pointing out that Hall suffered no prejudice because of the evidence against him, which included his confession.

Belfast: Charles Taylor's son convictions affirmed

In U.S. v. Belfast, No. 09-10461 (July 15, 2010), in an 87-page opinion, the Court affirmed the torture convictions and 1,164-month sentence of the son of former Liberian President Charles Taylor.

The Court rejected the argument that the torture statute, 18 U.S.C. § 2340A, was unconstitutional because its definition of torture swept more broadly than the Convention Against Torture, which authorized the enactment of the statute. The Court noted that the Judiciary is deferential to other Branches on such issues, and found the differences between the definitions immaterial.

The Court also rejected the argument that § 2340A could not apply extraterritorially to acts in Liberia. The Court pointed out that Belfast was a United States citizen, that Congress has the power to regulate the extraterritorial acts of citizens, and that the statute was intended to apply extraterritorially. The Court also found that 18 U.S.C. § 924(c) could apply extraterritorially, because this is an ancillary statute that relies on a separate substantive crime, here the substantive crime of torture.

Turning to evidentiary issues, the Court rejected the argument that a torture victim’s statements were hearsay, finding them admissible both as prior consistent statements offered to rebut a claim of fabrication, or as excited utterances.

The Court found no error in the admission of unredacted medical records containing statements that the victims suffered “abuse” or “torture,” noting that these were statements of “causation” that did not assign fault for the abuse or torture.

The Court found no error in the admission of rap lyrics found in a notebook in the defendant’s suitcase, noting that they were adequately authenticated, and probative of the defendant’s commission of atrocities.

The Court rejected the argument that the government should have been compelled to produce then-classified Justice Department “Torture Memos.” The Court found these documents “irrelevant” to the defense, since the acts charged in the case were not similar to those described in the Torture Memos.

Turning to the sentence, the Court found that the kidnaping and murder enhancements were supported by the evidence, and that the district court was authorized to consider this evidence.

Snipes: Tax Evasion Convictions and Sentence Affirmed

In U.S. v. Snipes, No. 08-12402 (July 16, 2010), the Court affirmed tax evasion convictions and a three-year sentence.

The district court’s denied a venue transfer motion pursuant to 18 U.S.C. § 3237(b), because the motion was filed after this statute’s 20-day deadline. The Court rejected the argument that Fed. R. Crim. P. 12(c), which authorizes district courts to set deadlines for pretrial motions, supersedes § 3237(b)’s deadline.

The Court rejected the argument that the district court should have held a hearing to decide whether venue was proper. The Court noted that venue is an element of a charge, which must be decided by a jury, not a district court. The Court rejected the argument that constitutional rights were at stake in the venue question, and therefore should be resolved pre-trial, pointing out that, unlike exclusionary rule rights, the Sixth Amendment right to have venue proven as an element of the offense “is safeguarded by integrating it into the trial.”

The Court affirmed the district court’s refusal to instruct the jury regarding Snipes “good faith reliance on the Fifth Amendment.” The Court noted that the district court gave adequate instructions regarding good faith, and pointed out that the Fifth Amendment reliance was not related to the counts of which Snipes stood convicted.

Turning to sentencing, the Court rejected the argument that USSG § 2T1.1 is invalid because a misdemeanor is a less serious offense. The Court noted that the Guidelines provide graduated tax evasion penalties, depending on the amount of the tax loss, recognizing that major tax evasions are “more serious.”

The Court also rejected the argument that § 2T1.1 was invalid because it was not the product of empirical research. The Court noted that the lack of a empirical research, while a “factor” that can justify a district court’s departure from the Guidelines, does not require wholesale invalidation of a Guideline. Further, § 2T1.1 was created after empirical analysis of sentences for white-collar crimes.

The Court upheld an obstruction of justice Guideline enhancement. The Court found sufficient evidence that Snipes threateningly instructed an employee not to respond to a grand jury subpoena.

Finally, the Court upheld the 36-month sentence’s reasonableness.

Allen: Defendant Can Blame Counsel for His Own Litigation Decision

In Allen v. Sec. Fla. Dep’t of Corrections, No. 09-13217 (July 14, 2010), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1991 murder.

The Court rejected Allen’s argument that the Florida state courts incorrectly failed to consider the errors in his trial cumulatively. The Court noted that the cumulative error issue was briefed in the Florida courts, and Florida law requires courts to consider the cumulative impact of errors.

The Court also rejected Allen’s argument that counsel was ineffective in failing to put on mitigating evidence at the penalty phase of his trial. The Court pointed out that Allen specifically instructed counsel not to present mitigating evidence. “Allen . . . does not have the right to escape the consequences of his own decision not to present any mitigating circumstances evidence by shifting the blame for it to someone else.”

Walker: No Clearly Established Crawford Rights In Civil Commitments

In Walker v. Hadi, No. 09-15701 (June 4, 2010), the Court held that, in a habeas proceeding challenging a Florida civil commitment order classifying Walker as a sexually violent predator, Walker could not show error based on the violation of his right to cross- examine witnesses, under Crawford v. Washington, because it is not “clearly established” that Crawford rights exist in civil commitment proceedings.

The Court noted that AEDPA bars relief for habeas petitioners unless they can show an unreasonable application of “clearly established” law as determined by the Supreme Court. However, to date the Supreme Court has not addressed whether Crawford protections, which exist in criminal proceedings, also exist in civil commitment proceedings. Thus, the state court which denied Walker Crawford protections did not violate “clearly established” law.

Fontenot: Government Need Only Prove Federal Investigative Jurisdiction

In U.S. v. Fontenot, No. 08-12266 (July 13, 2010), the Court, on plain error review, held that it was not erroneous, in a prosecution for making a false entry in a document with the intent to impede an investigation within the jurisdiction of a United States agency, in violation of 18 U.S.C. § 1519, to instruct the jury that the government is not required to prove that the defendant knew that his conduct would obstruct a federal investigation.

Fontenot was a corrections officer who falsified information in a report regarding an assault on an inmate.

The Court noted that there can be no “plain” error if there is no precedent from the Supreme Court or the Eleventh Circuit resolving the issue. Here, no such precedent addressed the issue whether the government is required that the defendant knew that his conduct would obstruct a federal investigation. Thus, Fontenot could not show that any error was “plain.” The Court noted legislative history for § 1519 which indicated that the government is only required to prove that the investigation in question fell within federal jurisdiction.

Thompson: Manifest Injustice Standard applies to nonpreserved sufficiency challenge

In U.S. v. Thompson, No. 08-13658 (July 8, 2010), the Court rejected sufficiency of the evidence challenges to multiple convictions of robberies and for using firearms in the course of those offenses.

The Court noted that because, as to certain counts, the defendant failed to move at the close of the government’s case for judgments of acquittal, on appeal the challenge to the sufficiency of the evidence supporting the convictions on those counts was not reviewed de novo, but only for “manifest miscarriage of justice.”

The Court found that the evidence was sufficient, citing the testimony of witnesses who identified the defendant, his gun, and his getaway vehicle.

Garcia-Cordero: "Bring and Present" Requirement does not violate Privilege

In U.S. v. Garcia-Cordero, No. 09-10292 (June 29, 2010), the Court held that 8 U.S.C. § 1324(a)(2)(B)(iii), which imposes a duty on individuals transporting international passengers to “bring and present” those passengers to appropriate immigration officers at a designated point of entry immediately upon arrival into the country, does not violate a defendant’s privilege against self-incrimination.

The Court noted that the “regulatory regime” doctrine permits the government to compel conduct without violating the privilege against self-incrimination. The Court noted that drivers involved in accidents are required to exchange names and addresses with the drivers of other vehicles, and that persons are required to file income tax returns, even when doing so may expose them to criminal charges.

The Court noted that immigration law is properly classified as regulatory rather than criminal. The “bring and present” requirement is part of the federal regulatory scheme through which the government controls the national borders. The requirement therefore did not run afoul of the caselaw that prohibits invasions of privilege when imposed on “highly selective groups.”

Rothenberg: Online chats are basis for sentence enhancements

In U.S. v. Rothenberg, No. 08-17106 (June 29, 2010), the Court affirmed the sentence of a defendant who pled guilty to using a computer to induce an individual under 18 to engage in criminal sexual activity, and to possessing child pornography.

The defendant argued that online chats in which he discussed with adults possible sexual acts with minors should not have been the basis for a sentence enhancement under the Guidelines. The Court found that “a sexually solicitous communication” could constitute a substantial step toward commission of an offense, and therefore qualified for the enhancement. “Rothenberg’s chats were specific instructions to adults with influence over young children; these graphic guides to sexual exploitation showed the adults both how, physically, to molest the children and how, emotionally, to persuade the children to comply with the abuse.”

Vining: Judge's Consultation of Extra-Record Evidence Not Prejudicial

In Vining v. Sec. Dep’t of Corrections, No. 07-15681 (June 28, 2010), the Court denied habeas relief to a Florida inmate sentenced to death for a 1987 murder.

The Court rejected Vining’s argument that he was denied a fair trial because the state trial court considered extra-record information. Applying Brecht v. Abrahamson’s standard of review, the Court determined that any error did not have a substantial effect on the jury’s verdict. The Court noted that none of the extra-record materials that the judge reviewed were presented to the jury, which reached a verdict independent of the judge’s investigation. The Court also noted that the trial judge’s familiarity with hypnosis was irrelevant because of independent evidence that showed that prosecution witnesses were not hypnotized. Finally, at the penalty phase, the jury recommended death, and the judge’s consultation of extra-record information did not affect his decision to impose the jury’s recommended sentence.

The Court also rejected Vining’s ineffective assistance of counsel claims, noting that no reasonable probability existed that the trial would have come out differently.

Marshall: Jury Override Not Arbitrary

In Marshall v. Sec., Dep’t of Corrections, No. 09-15419 (June 28, 2010), the Court denied habeas relief to a Florida death-row inmate convicted of a 1988 murder.

Marshall argued that when the Florida trial court overrode the jury’s recommendation of a life sentence, and sentenced him to death, it violated Florida’s rule limiting such overrides to cases where it was clear that virtually no reasonable person could differ. The Court pointed out that the evidence showed that Marshall did not act in self-defense when he killed another prison inmate. Further, on federal habeas review, the courts ought not “second-guess” a Florida court’s application of its jury-override ruling, but can only overturn if it was arbitrary or discriminatory. Nothing in the record so suggested.

Suggs: No Prejudice in Failure to Present Mental Deficit History

In Suggs v. McNeil, No. 09-12718 (June 24, 2010), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1990 murder.

The Court rejected the argument that the Florida Supreme Court unreasonably applied the prejudice prong of Strickland when it determined that counsel’s failure at the penalty phase to adequately present a defense based on Suggs’ mental health did not prejudice the outcome.

The Court rejected the argument that the Florida courts were not entitled to deference because they compartmentalized the different aspects of prejudice. The Court noted that the Florida Supreme Court stated that it had considered the penalty phase “as a whole.”

The Court recognized that the jury had split 7-5 in favor of death, but found that Suggs had not shown that new evidence of his mental deficit, along with new aggravating evidence, would not have caused a single new juror to vote for life and no new jurors to vote for death. Even in light of the closely divided jury, the evidence of Suggs’ mental deficit would not have changed the outcome, because of he fell “well within the normal range of general intellectual functioning,” and additional evidence of mental history would have opened the door for the State to present evidence of Suggs’ drug and alcohol use. Further, the State would have been able to paint Suggs as a violent, manipulative person.

Huff: Double-Recovery Victim Windfall Not Proper in Restitution

In U.S. v. Huff, No. 08-16272 (June 25, 2010), the Court rejected the argument that the government proved multiple hub-and-spoke conspiracies, not a single conspiracy, but vacated a restitution order.

Rejecting Huff’s conspiracy argument, the Court noted that the evidence showed that the defendants interacted with one another and with their co-conspirators. This was not a case where the conspirators were unaware of others’ activity. Thus, the evidence established a single conspiracy.

The court affirmed the calculation of an $86,938.03 loss amount for sentence enhancement purposes. The Court rejected the argument that the loss amount should be limited by the amount of the kickback the defendant received. The Court noted that the amount of the bribe a defendant receives can be the loss amount, but only if it is not possible to calculate the net benefit of the improper benefit garnered by the defendant. Here, the benefit resulting from the illegal scheme exceeded the amount of Huff’s kickbacks.

Turning to restitution, the Court noted that the district court imposed $86,938.03 in restitution – the same as the loss amount. However, a defendant’s culpability does not always equal the victim’s injury. Further, the district court did not adequately explain how it reached its restitution figure. The Court noted two major ambiguities in the record. First, while some orders placed by the victim were the subject of the fraud, other orders were actually filled – and these orders must be offset against the restitution amount. Second, the restitution amount might have intended to include the kickbacks received by another co-defendant. But restitution is limited to the amount wrongfully taken by the defendant. If restitution was ordered in the co-defendant’s case, this would result in a windfall double-recovery for the victim. The Court therefore remanded for a limited resentencing on the issue of restitution.

Alexander: Firing Firearm from Vehicle is "Crime of Violence"

In U.S. v. Alexander, No. 08-17062 (June 25, 2010), the Court held that a prior conviction under Fla. Stat. § 790.15(2) fo discharging a firearm from a vehicle within 1,000 feet of another person qualified as a crime of violence under the career offender provisions of the Sentencing Guidelines. The Court also rejected Alexander’s challenge to the district court’s refusal to award credit for time served in state custody, noting that this issue must first be raised by administrative challenge to the Bureau of Prisons’ computation of his sentence.

After reviewing Begay and Chambers, the Court noted that courts must use a “categorical” approach to the “crime of violence” issue, looking to the elements of the offense. Here, the offense was more serious than the Florida misdemeanor of merely discharging a firearm in a public place, a distinction that “suggests that this provision targets violent and aggressive conduct, not the mere careless use of a firearm.” Further, the offense posed a serious potential risk of physical injury, because the firing of a weapon poses a risk that a bystander will be injured by a stray bullet. Further, like the enumerated offenses of burglary and arson, the conduct is “purposeful,” even if it does not involve “a specific intent to harm.” Firing a firearm “[m]ore often than not . . . is a violent and aggressive act.” “[A] person who discharges a firearm from a vehicle performs a deliberate act that poses an obvious risk of injury or death to innocent third parties.” The Court analogized the offense to fleeing at high speed or with wanton disregard for safety, conduct which it had held to qualify as a crime of violence in U.S. v. Harris, 586 F.3d 1283 (11th Cir. 2009).

DeYoung: No Habeas relief for 1993 murders

In DeYoung v. Schofield, (09-10964), the Court affirmed the denial of habeas relief to a Georgia death-row inmate for the 1993 murder of his parents and sister.

The Court rejected the argument that DeYoung’s counsel was deficient in failing to investigate his personal history, noting counsel’s investigation of potential witnesses. The Court also rejected the argument that counsel failed to adequately investigate Spencer’s mental health history, noting that Spencer himself had not disclosed to counsel any mental health information.

Finally, the Court noted that DeYoung would have been unable to show prejudice, because of the “carefully planned and premeditated” nature of his murders, and the “study in brutality” in his method of killing.

Williams: Florida Battery does not Qualify for Career Offender

In U.S. v. Williams, No. 08-10184 (June 22, 2010), on remand from the United States Supreme Court in light of Johnson v. U.S., 130 S.Ct. 1265 (2010), the Court held that a prior Florida State conviction for battery on a law enforcement officer did not qualify as a crime of violence for career offender sentencing purposes. The Court noted that battery did not necessarily involve the requisite "physical force." Nor did the factual record so indicate. The Court therefore vacated the sentence and remanded for resentencing.

Gilbert: Career Offender Status Can be a Non-existent offense

In Gilbert v. U.S., No. 09-12513 (June 21, 2010), the Court held that even though a defendant had filed a prior § 2255 challenge to career offender sentencing status, he was entitled to habeas relief based on his claim that his prior conviction for carrying a concealed weapon was no longer an offense that would qualify as a crime of violence, and that he therefore was wrongfully sentenced as a career offender.

At his original sentencing, Gilbert was categorized as a career offender, based in part on a prior conviction for carrying a concealed weapon. At the time, carrying a concealed weapon was a qualifying offense for career offender status. Years later, Begay was decided, and this offense no longer so qualified. However, in the interim, Gilbert had brought an (unsuccessful) § 2255 challenge to his sentence. Consequently, his second habeas challenge could succeed only if (1) his claim was based on a retroactively applicable Supreme Court decision, (2) circuit law squarely foreclosed Gilbert’s claim at the time he first brought it, and (3) Gilbert was convicted for a nonexistent offense. The government conceded the first two points.

The Court concluded that Gilbert was was in effect convicted for a nonexistent offense when he was sentenced as a career offender. The Court stated that Gilbert was in jail today because he was found guilty of the “‘offense’ of being a career offender.” Drawing a parallel to death sentencing cases, the Court found that Gilbert was “actually innocent” of the aggravating factor – violent prior felonies – that were the basis for his career offender sentence. The Court noted: “The animating principle underlying the writ of habeas corpus is fundamental fairness.”

Lall: Defendant's Statements Involuntary: Suppressed

In U.S. v. Lall, No. 09-10794 (May 28, 2010), the Court held that a defendant did not make a voluntary waiver of his Miranda rights, and that his statements were involuntary. Because the government’s uses at trial of the statements and of the evidence derived from the statements were not harmless, the Court reversed the defendant’s conviction.

After giving Lall his Miranda warnings, a police detective told him that any information he shared with police would not be used to prosecute him. Lall then showed the detective the equipment he used to commit identity theft and explained how each device worked. Later, Lall was asked to come to the police station, and told again that he was not going to be charged “with any of this.” Lall gave another incriminating statement.

The Court held that, even if Lall was not in “custody” for Miranda purposes, the statements he gave were involuntary because the police “explicitly assured Lall that anything he said would not be used to prosecute him.”

Turning to the second confession at the police station, the Court rejected the government’s claim that Lall had waived his objection to its admission, noting that the district court’s ruling to exclude it was “enough to preserve the issue.” The Court held that the second confession was also the product of “improper promises of non-prosecution.”

The Court ruled that the identity theft equipment should have been suppressed, because the police “did not have the slightest clue” that this equipment was incriminating until Lall said so.

The Court found that the error in admitting the evidence at trial was not harmless, citing the prosecution’s own concession during closing argument to the jury: “Folks, if none this [physical evidence] were here, none of this, and if Lall’s statements were not before you, I would tend to agree with defense counsel [that it’s] not a real strong case for the government.”

Cunningham: Apprendi does not apply to supervised release revocation proceedings

In U.S. v. Cunningham, No. 09-13989 (May 28, 2010), the Court rejected a constitutional challenge to 18 U.S.C. § 3583(e)(3), the statute that authorizes a district court to revoke a term of supervised release and impose a sentence for all or part of the term of supervised release.

Citing Apprendi, Cunningham argued that the judge’s imposition of a sentence based on a revocation of supervised release violated his right to jury trial. The Court pointed out that supervised release is treated as part of the penalty for the initial offense. The Court noted that a person facing revocation of supervised release has already been convicted of a crime. Joining all other Circuits to have considered the question, the Court held that a defendant is not entitled to a jury trial at a supervised release revocation proceeding.

Thomas v. Allen: Atkins Bars Execution of Mentally Retarded Offender

In Thomas v. Allen, No. 09-12869 (May 27, 2010), the Court affirmed the granting of habeas relief to an Alabama death row inmate based on a finding that he was mentally retarded and therefore ineligible for execution under Atkins v. Virginia.

The Court noted that Atkins is a new rule of constitutional law made retroactive to cases on collateral review, and therefore, contrary to the findings of the Alabama courts, could not be defaulted under state procedural rules.

Reviewing the numerous studies showing that Thomas’ IQ fell below the mental retardation threshold, and other evidence, the Court held that Alabama courts unreasonably applied Atkins when they found Thomas was not mentally retarded.

Boffil-Rivera: False Statement was Material

In U.S. v. Boffil-Rivera, No. 08-16098 (May 27, 2010), the Court rejected a sufficiency of the evidence challenge to a conviction for making a false statement of material fact in a matter within the jurisdiction of a government agency, in violation of 18 U.S.C. § 1001(a)(2).

Boffil-Rivera denied to federal immigration officials that he had anything to do with a gun that was found in the car in which he was a passenger. The Court found that there was sufficient evidence that this statement was false, that the denial was intended to mislead, and that it was material because, at the time, Boffil-Rivera was not permitted to possess a gun.

Alfaro-Moncada: Ok to Border Search Cabin Without Reasonable Suspicion

In U.S. v. Alfaro-Moncada, No. 08-16442 (May 27, 2010), the Court held that a search of the cabin of a crew member of a foreign cargo vessel did not violate the Fourth Amendment, even though the Agricultural Enforcement Team that boarded the ship to inspect for prohibited agricultural materials had no reasonable suspicion regarding the contents of the cabin. The Court therefore affirmed the denial of a motion to suppress the child pornography DVDs that were found in the crew member’s cabin.

The Court noted that the search was a “border search” because the ship was docked after traveling three miles up the Miami River. The Court noted the heightened national interest in searching for agricultural contraband coming into the United States, citing the “extensive damage” caused by pests and diseases once they enter the country. The Court further stated that “any expectation of privacy a crew member has in his living quarters is weaker when those quarters are brought to the border of this country.”

The Court also rejected the argument that the admission of five still images of child pornography was unduly prejudicial, when Alfaro-Moncada had stipulated that the DVDs actually contained child pornography. The Court noted that the jury was shown only five images out of 4,650 on the DVDs.

Wright: Community Control Revocation Counts Like Probation Revocation

In U.S. v. Wright, No. 09-12685 (May 26, 2010), the Court held that a Florida sentence of “community control” is “similar” to other forms of conditional release, like probation, and that a sentence for revocation of community control therefore counts for purposes of calculating criminal history points under USSG § 4A1.1(a). The Court noted the similarities between the purpose and operation of probation and community control.

The Court also rejected a constitutional challenge to 18 U.S.C. § 922(g), pointing out that the statute only requires a “minimal nexus” to interstate commerce, which was satisfied here because Wright’s firearms were manufactured outside Florida.

Martinez: Court of Appeals Has Broad Power to Fashion Resentencing

In U.S. v. Martinez, No. 08-13846 (May 19, 2010), the Court, denying a motion for rehearing or rehearing en banc, the Court rejected the argument that its prior decision in U.S. v. Canty foreclosed the Court of Appeals, when it vacated a sentencing enhancement based on the defendant’s leadership role, to allow the government at resentencing to present new evidence in order to establish that the leadership enhancement was warranted.

The Court noted its broad appellate power under 28 U.S.C. § 2106. The Court further noted its precedent which in some cases when it reversed a sentence called for a de novo resentencing, while in other cases (as in Canty) providing for narrower relief. Thus, while in Canty it was appropriate to deny the government a “second bite at the battle” on resentencing because the government at the first sentencing had disclaimed reliance on other evidence, in Martinez’ cases, where defense counsel had not clearly objected to the leadership enhancement, it was fair on resentencing to allow the government to present new evidence regarding the defendant’s leadership role.

Garcia: Defining Generic "Aggravated Assault"

In U.S. v. Garcia, No. 09-10534 (May 21, 2010), the Court rejected a statute of limitations challenge to an illegal re-entry conviction, but vacated a sentence because a prior Arizona aggravated assault conviction was incorrectly counted as a “crime of violence.”

Because the illegal re-entry statute provides no specific statute of limitations, the general five-year term applied to the charged offense. An illegal reentry offense is deemed complete, triggering the commencement of the five-year limitations period, when, with the exercise of diligence, law enforcement could have discovered the illegality of the defendant’s presence in the United States.

The Court rejected Garcia’s argument that law enforcement could have discovered his presence in the United States more than five years before the indictment, when his wife filed an application for his citizenship which disclosed his prior deportation. The Court found that immigration officials reasonably delayed an investigation of Garcia’s status until his application process was complete. The delay in the completion of the application process – which pushed the investigation and discovery of Garcia’s unlawful status within the limitations period – was attributable to incorrect information his wife had filled out. Hence, immigration officials were sufficiently diligent in investigating Garcia’s unlawful status.

Turning to sentencing, the Court rejected the government’s argument that it was unfeasible to define a generic offense of “aggravated assault,” and that any offense labeled “aggravated assault” should therefore qualify as a “crime of violence” for purposes the 16-level Guideline enhancement. The Court determined that the generic offense “involves a criminal assault accompanied by the aggravating factors of either the intent to cause serious bodily injury to the victim or the use of a deadly weapon.” The Court found that Garcia’s prior Arizona offense was a “simple assault,” for which the only aggravating factor was the status of the victim: a law enforcement officer. The offense therefore did not qualify as a generic “aggravated assault” for Guideline purposes.

The Court further found that because recklessness was a sufficient mens rea to commit aggravated assault in Arizona, the offense did not qualify as a “crime of violence” because it did not involve the intentional use of physical force.

The Court therefore vacated the 16-level “crime of violence” enhancement.

Frazier: False statement is material to firearm sale

In U.S. v. Frazier, No. 08-11655 (May 14, 2010), the Court affirmed false statement firearm convictions, and reversed a sentence because it was incorrectly calculated.

Turning first to a jurisdictional question, the Court recognized that the defendant filed his notice after the expiration of the 10-day deadline for filing a notice of appeal. However, because the government voluntarily forfeited its objection to the untimeliness of the notice, the Court had jurisdiction.

The Court rejected the argument that the evidence was insufficient to sustain the false statement convictions. The defendant argued that the false statement relating to the purchaser of the firearm was immaterial, because neither the real purchaser, nor the straw purchaser of the firearm, was a convicted felon; both were eligible to purchase the firearm. The Court noted that while the lawfulness of the sale may depend on the identity of the purchaser, the identity of the purchaser remains material to the sale itself. Therefore, the false statements relating to the identity of the purchaser were material to the sale, regardless of whether the buyers were all eligible to punish a firearm.

The Court also found sufficient evidence to sustain a money laundering conviction. Although the facts did not establish a direct link between drug proceeds and moneys, there was ample circumstantial evidence from which an inference could be drawn that a connection existed.

Finally, the Court vacated the sentence on account of the district court miscalculation of the Guideline offense level.

Gomez-Castro: 1028(a)(1): Jury Can Use Its Common Sense

In U.S. v. Gomez-Castro, No. 09-12557 (May 13, 2010), the Court held that the government presented sufficient evidence to sustain a conviction for aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). The Court rejected the argument that there was insufficient evidence to establish that Gomez-Castro knew that she had used the identity of a real person. Pointing out that such knowledge can be established with circumstantial evidence, the Court noted that the evidence included proof that Gomez-Castro paid $2,500 for a fake birth certificate and social security card, had tested their authenticity repeatedly before using them to obtain a passport, and that the jury could use its common sense to know that Gomez-Castro knew that the government used verification procedures to verify the identity she was stealing.

McNair: Alabama Sewer Bribery Convictions Upheld

In U.S. v. McNair, No. 07-11476 (May 12, 2010), in a 167-page opinion, the Court affirmed multiple bribery convictions of government officials and private contractors involved in sewer projects in Jefferson County, Alabama.

The Court rejected a challenge to the jury instructions’ failure to instruct that a bribery conviction requires a showing of a quid pro quo, i.e., that a specific thing was exchanged for a specific act. The Court noted that the bribery statute, 18 U.S.C. § 666, does not contain the expression “quid pro quo. Further, the statute’s requirement of a “corrupt” mens rea suffices to circumscribe criminal liability, as it requires a dishonest goal, or unlawful means. Because the statute applies not only to specific actual acts, but to possible future acts, “the quo need not be specific at the time of the quid.” An instruction that requires a “corrupt” state of mind sufficiently excludes the possibility that the exchange was legitimately designed to foster “goodwill.”

The Court rejected sufficiency of the evidence challenges to the convictions, pointing out that the contractors’ provision of free construction work on the homes and offices of the government officials coincided with the award of sewer contracts, and noting the pains to which the defendants went to cover up their conduct.

The Court also rejected a challenge, under Fed. R. Evid. 404(b) to the admission against one government official of evidence of bribery by the same contractor of another government official. The Court pointed out that evidence of multiple bribery recipients undercut the defense that the payments were made to one out of “friendship.”

The Court rejected the argument that the prosecution knowingly put on false testimony of a government witness, finding that the testimony may not have been false, and that the government did not know it was false – and that even if knowingly false, it did not affect the jury’s evaluation of the credibility of the witness.

As to a single count of conspiracy under 18 U.S.C. § 371, the Court overturned a conviction it was barred by the statute of limitations. The count was based on non-conspirator’s receipt of money from another non-conspirator, pursuant to an agreement between conspirators that was made at a time outside the statute of limitations. Although the receipt of illicit payment can qualify as an overt act for purposes of a conspiracy, and although this receipt of payment occurred within the statute of limitations, it involved non-conspirators, and there was no evidence that the conspirators who agreed on the payment knew the timing of the payment.

The Court rejected the argument that Wharton’s Rule, which precludes punishment for a substantive offense and of a conspiracy offense if the substantive offense itself requires the participation of two persons. The Court found no Congressional intent to preclude cumulative punishment for bribery and for conspiracy to commit bribery.

Turning to sentencing, the Court affirmed a $851,927 restitution, an amount which corresponded to the bribes paid. The Court rejected the argument that the government failed to show that the County lost this amount, noting the betrayal of the public trust, and that companies expect to recoup bribes in the cost of doing business. The Court recognized that because one defendant was 84 years old, the record did not show that he could repay the restitution in his lifetime; however, the Court found no plain error, because the County was entitled to recover restitution payments “for as long as they are made.”

The Court vacated the imposition of a $250,000 fine on one defendant, finding it was unable to glean from the record the basis for this specific amount. However, the Court affirmed the imposition of a $19.4 million fine on another defendant, noting that it was well below the Guideline range.

Mason: Confrontation Clause Error Harmless

In Mason v. Allen, No. 09-12195 (May 11, 2010), the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for a 1994 murder.

The Court found that the State committed error when it deprived Mason of the opportunity to cross-examine the informant on whose hearsay testimony it relied at trial. The State also committed error when the prosecutor stated in closing argument at the penalty phase that, “like all of the modern-day criminals,” the defendant intended to write a book – when there was no evidence to support this. However, the errors were harmless. The defendant confessed to the murder. The murder weapon was found in his car.

The Court found that the defendant had defaulted his argument that his confession was coerced.

Stone v. Powell foreclosed his argument that the State courts incorrectly decided his motion to suppress based on a Fourth Amendment violation

Phaknikone: MySpace Evidence Not Admissible Under 404(b)

In U.S. v. Phaknikone, No. 09-10084 (May 10, 2010), the Court found that the district court violated Fed. R. Evid. 404(b) when it admitted evidence from the defendant’s MySpace account, but held that the error was harmless in light of the overwhelming evidence of guilt, and affirmed bank robbery convictions.

The MySpace evidence consisted, inter alia, of a photograph posted on Phaknikone’s profile page that showed him holding a gun, and of his nickname, “Trigga.” The Court rejected the government’s argument that the photograph was properly admitted under Rule 404(b) as proof of modus operandi. “Although the photograph may portray a ‘gangster-type personality,’ the photograph does not evidence the modus operandi of a bank robber who commits his crimes with a signature trait.” The Court found that the government improperly introduced photographs because it wanted the jury to infer that Phaknikone “is a gangster who is likely to rob banks.”

However, the error in admitting the evidence was harmless in light of Phaknikone’s confession to four bank robberies, the fact that stolen money was found at the scene of his arrest, and witness identification evidence. In addition, the government presented other modus operandi evidence.

Turning to sentencing, the district court rejected Phaknikone’s argument that his sentence of 2,005 months for seven bank robberies was greater than necessary. The sentence was based in part on a 25-year mandatory punishment under 18 U.S.C. § 924(c).

Paige: Congress Can Regulate Intrastate Child Pornography

In U.S. v. Paige, No. 09-13067 (April 27, 2010), the Court affirmed convictions of a parent for permitting a minor child to engage in sexually explicit conduct for the purpose of producing child pornography, rejecting the argument that 18 U.S.C. § 2251(b) exceeded the scope of Congress’ authority under the Commerce Clause.

The Court found that “there is nothing irrational about Congress’s conclusion that failure to regulate the intrastate production of child pornography, by punishing parents who permit their minor children to participate in the production of child pornography, would undermine its regulation of the interstate child pornography market, especially where Congress’s goal is to eradicate the interstate market in its entirety.” The non-commercial nature of Paige’s photographs of his own child was therefore irrelevant. Moreover, Paige took the photographs to put on a website, thus establishing the interstate nexus.

Crape: Insanity Acquittee Revocation Must Involve Failure to Comply with Regimen

In U.S. v. Crape, No. 09-12470 (April 21, 2010), the Court held that a district court has authority to revoke the conditional discharge of a person who was acquitted by reason of insanity and then committed, only if the person has failed to comply with his regimen of treatment.

Though recognizing that its position conflicted with decisions in three other Circuits, the Court held that the plain language of 18 U.S.C. § 4243(g), coupled with its legislative history, makes an acquittee’s failure to follow his doctors’ orders a prerequisite to the revocation of his release. The Court rejected the argument that the statute gave district courts authority to revoke a conditional discharge simply because an acquittee is “dangerous.” The Court pointed out that § 4243 differed from the supervised release statute, which delegates broader authority to district courts with regard to violations of supervised release.

Dean: Attorney General Could ByPass Notice & Comment on SORNA Rules

In U.S. v. Dean, No. 09-13115 (April 28, 2010), the Court held that the Attorney General had “good cause” to promulgate the rule making sex offender registration requirements applicable to sex offenders convicted prior to SORNA’s enactment without a pre-promulgation notice and comment period.

The Court found that bypassing the notice and comment period allowed the government to immediately start prosecuting sex offenders who failed to register in state registries, thus reducing the risk of additional sexual offenses. The Court therefore found that public safety justified by passing notice and comment on the Attorney General’s rule.

Lee: Substantial Step Toward Enticement of Minor Need not be toward Causing Conduct

In U.S. v. Lee, No. 08-17077 (April 16, 2010), the Court affirmed convictions for attempted enticement of a minor, and child pornography charges.

The Court rejected Lee’s sufficiency of the evidence challenge to his convictions. Lee argued that he could not be guilty of attempted enticement of a minor because he dealt only with an adult (an undercover agent), with regard to two fictitious minors. The Court found that, for purposes of violating the enticement statute, one can “induce” a minor by dealing with an adult who has charge of the minor, like a parent or guardian. The Court cited precedent holding that an actual minor is not needed to violate the statute: fictitious minors suffice.

The Court rejected the argument that Lee had not taken a “substantial step” toward committing the offense. The Court pointed out that a substantial step toward “causing assent” to sex with a minor suffices; the substantial step need not be “toward causing actual sexual conduct.” The Court found sufficient evidence that Lee had taken a substantial step toward causing assent, including his promise not to harm the minor girls during intercourse.

[Martin, J., dissenting, argued that the substantial step evidence was insufficient, pointing out that during the telephone calls “the plans were never more than general talk about what could happen in the future,” and the defendant did not take any step beyond the boundaries of his property.]

Fowler: "Possible" Investigation Sufficient for 1512 Murder Liability

In U.S. v. Fowler, No. 08-15463 (April 14, 2010), the Court found sufficient evidence to support a conviction for murder with the intent to prevent a person from communicating information about a federal offense to a federal law enforcement officer, in violation of 18 U.S.C. § 1512(a)(1)(C).

Fowler shot a police officer in the back of the head while the officer had stopped a group of persons who were preparing to rob a bank, and who possessed firearms, a stolen car, and narcotics – i.e., were committing federal crimes that “could have led to a federal investigation and prosecution.” Consequently, Fowler had the requisite mens rea to violate 18 U.S.C. § 1512(a)(1)(C), which criminalizes killings intended to prevent communication relating to “possible commission” of a federal offense. (Emphasis in original). Citing U.S. v. Veal, 153 F.3d 1233 (11th Cir. 1998), which similarly interpreted a similarly-worded statute, the Court held that the government need only prove “that the defendant intended to prevent the murder victim from potentially communicating with federal law enforcement officials generally about a possible federal offense.”

Lena-Encinas: No Miranda Custody When Seized In Frontyard

In U.S. v. Lena-Encinas, No. 08-12574 (April 13, 2010), the Court held that a defendant was not “in custody” for Miranda purposes, and affirmed the denial of a motion to suppress unMirandized statements he made to police.

The Court noted that merely being “seized” does not suffice to establish custody: the person must feel not free to leave “to a degree associated with a formal arrest.”

Lena-Encinas was encountered by police in the backyard of a townhouse. Police had their weapons out of their holsters, pointing downward. Police instructed Lena-Encinas to sit down while the townhouse was being secured, and stated that he was not a suspect. During the next ten minutes, Lena-Encinas was escorted to the front of the townhouse, and told not to speak. After police obtained information that there was a firearm in the townhouse, they asked Lena-Encinas about it. The Court held that Lena-Encinas’ response – that a firearm was under a mattress in the townhouse – was not obtained in violation of Miranda.

Lena-Encinas “was on familiar ground in his own front yard.” His detention “lasted a mere five minutes.” Lena-Encinas never asked to leave the premises, nor informed the officers that he did not wish to comply with their requests. Therefore, even assuming Lena-Encinas had been seized, he “would not have believed that he was utterly at the mercy of the police.” He was not in custody for Miranda purposes.

Powell: Insufficient Evidence of Mental Retardation to Bar Death Penalty

In Powell v. Allen, No. 08-16784 (April 8, 2010), the Court affirmed the denial of habeas relief to an Alabama death row inmate.

The Court, inter alia, rejected Powell’s claim that he is sufficiently mentally retarded that his execution is constitutionally barred. The Court noted that a finding of mental retardation requires both significantly subaverage intellectual functioning and significant deficits in adaptive functioning. Powell failed to plead facts to establish these findings.

Coast: Two Criminal History Points for Driving with Suspended Licence Conviction

In U.S. v. Coast, No. 17-116 (April 5, 2010), the Court affirmed adding two points to a defendant’s criminal history for a prior conviction for driving with a suspended license.

Coast had originally been sentenced to probation. Had this remained his only sentence, the prior conviction would not have qualified for the two criminal history points under U.S.S.G. § 4A1.2(c)(1). However, Coast’s probation was revoked, and he was sentenced to 219 days’ incarceration, more than the 30-day threshold for counting prior convictions. The Court noted that revocation of probation is part of an original sentence. Moreover, the Guidelines focus on the length of the sentence, not the nature of the conviction.

Jones: Speedy Trial Act Violation

In U.S. v. Jones, No. 08-16999 (Apr. 2, 2010), the Court reversed two felon-in-possession of a firearm and ammunition convictions because of a Speedy Trial Act violation, affirmed two felon-in-possession convictions, and remanded for resentencing.

Jones was convicted of two counts of being a felon-in-possession, but the Court of Appeals overturned these convictions. After a remand, the government, after obtaining additional information from a jailhouse informant, re-indicted Jones, this time on four felon-in-possession counts. The jury convicted Jones on all four counts.

Jones argued that the two original counts should be dismissed on Speedy Trial grounds because of the passage of 70-day deadline between the issuance of the mandate on his first appeal and the commencement of his second trial. The Court agreed, pointing out that when, as occurred here, the district court decides a pre-trial motion without a hearing, this court has 30 “excludable days” to rule on a motion – thereafter, the days count against the Speedy Trial deadline. Once the excludable days were taken into account, a total of 75 days elapsed before Jones was brought to trial. Hence, a Speedy Trial violation occurred.

However, the Court found that the district court could dismiss the affected counts “without prejudice” instead of “with prejudice,” because Jones was charged with “serious crimes,” the government’s delay was “excusable” because its interpretation of the Speedy Trial Act was “colorable,” and the five-day delay was “brief.”

The Court rejected the argument that Double Jeopardy required dismissal of the two new counts of the indictment. The charged acts of possession did not constitute a continuing course of conduct. Instead, the defendant possessed different weapons – two firearms and different ammunition for each firearm – at different times and or places. The government could therefore treat them as (four) different units of prosecution. For this same reason, the indictment was not multiplicitous.

The Court also rejected the argument that the prosecution vindictively added two counts to the indictment. The Court noted that the new information the government obtained after Jones’ win on appeal gave it sufficient evidence “to confidently bring the additional possession charges.”

The Court found no reversible error in the district court’s admission of the videotaped statement of a witness. The witness was unable to remember the subject matter of the video. The statement was therefore admissible under Fed. R. Evid. 803(5) as past recollection recorded, because the witness gave adequate verification of the accuracy of the contents of the video. The Court found no Confrontation Clause violation in the admission of the video, pointing out that the witness was subject to cross-examination at trial.

The Court also found no reversible error in allowing the video tape to be played for the jury during deliberations – even though the video was not received in evidence as an exhibit. The Court assumed that it was error to allow the video to be played for the jury during deliberations, but found the error harmless because the video “provided only cumulative evidence.”

Finally, the Court found no Jencks Act or Brady violation in the government’s failure to turn over a letter written by one of its cooperating witnesses. The Court found the nondisclosure harmless, because any additional impeachment value would have been “minimal.”

Santiago: Florida probation and adjudication withheld is a "conviction"

In U.S. v. Santiago, No. 09-10466 (April 2, 2010), the Court held that a guilty plea followed by a sentence of probation and a withholding of adjudication under Florida law qualified as a prior “conviction” for purposes of enhancing an offender’s sentence under 18 U.S.C. § 922(g)(1).

Rejecting the defendant’s interpretation of the statute, the Court noted that the determination whether a prior judgment should be treated as a “conviction” was a matter of State law. Here, Florida’s habitual offender law expressly provided that a sentence of probation without an adjudication of guilty “shall be treated as a prior conviction.” Thus, Santiago’s prior judgment, along with two other prior convictions, qualified him for the enhanced sentence.

Suarez: Alien Smuggling Convictions Affirmed

In U.S. v. Suarez, No. 08-13675 (March 31, 2010), the Court affirmed alien smuggling convictions and sentences.

The Court rejected the argument that the indictment should be dismissed because the government repatriated to Cuba the group of Cubans on the boat being smuggled to the United States – Cubans who would have testified that they forced their way onto a boat destined only for relatives of the defendant. The Court noted that the defendant never raised this defense during interviews with the Coast Guard, and was otherwise potentially able to present it at trial. Further, the government did not repatriate the Cubans in bad faith, but in accordance with “standard operating procedure.”

The Court also rejected the argument that the application for electronic surveillance was invalid because other investigative procedures were not adequately tried, as the statute requires. The Court cited evidence physical surveillance was used, and testimony that “pen registers and trap and trace devices were not entirely useful because of the probability of multiple subscribers to the previously identified phone numbers and the frequent use of aliases.”

The Court also rejected the argument that the government failed to minimize the interception of communications not subject to wiretap. The Court found that the small number of “minimized” calls was not evidence, standing alone, of unreasonable minimization procedures.

The Court rejected the argument that the defendant should have been able to introduce in evidence a government witness’ prior inconsistent statement made to law enforcement agent. The Court noted that the witness, when questioned about the statement, did not adopt it. Further, it was not admitted as an admission of the declarant’s state of mind, because the witness was not the declarant of the statement, and the statement was made after, not during, the incident.

The Court found that a prosecutor’s vouching for a witness in closing argument did not prejudice the defendant’s substantial rights, pointing out that the judge instructed the jury on how to evaluate witness credibility.

Turning to sentencing, the Court affirmed the imposition of a “special skills” sentence enhancement under USSG § 3B1.3. The Court found that “the average person could not operate a vessel . . . without the use of [the defendant’s] unique skills.” The Court also affirmed the enhancement for causing a substantial risk of death, because 36 individuals were on board a vessel designed to hold no more than 12, and no life jackets were available. It found no double counting occurred as a result of the additional enhancement for endangerment during flight, which was based on a two-hour high-speed chase.

Finally, the Court rejected the argument that a five-year statutory maximum applied to his offense, pointing out that convictions under 8 U.S.C. § 1324(a)(1)(A)(v)(I) carry a ten-year maximum.