Coronado-Cura: Simple Vehicle Flight is Aggravated Felony

In U.S. v. Coronado-Cura, No. 12-12344 (March 26, 2013), the Court held that “simple vehicle flight” in violation of Fla. Stat. § 316.1935(2) qualifies as an “aggravated felony” for purposes of an 8-level Guideline sentence enhancement for a defendant convicted of illegally entering the United States.




The Court noted that vehicle flights create a risk of car crashes, and that the Guidelines definition of risk include the risk that force will be used against the person or property of another (regardless of whether that force comes directly from the fleeing offender or the pursuing police officers). The Court also noted its precedent in Petite which had held that simple vehicle flight qualified as a “violent felony” for purposes of the Armed Career Criminal Act.

Cruz: Target Cashier Abused Her Trust

In U.S. v. Cruz, No. 11-12568 (March 26, 2013), the Court, for an offense involving aggravated identity theft, upheld (1) the imposition of a sentence enhancement under U.S.S.G. § 2B1.10(b)(1) for the use of device-making equipment, and (2) a sentence enhancement under § 3B1.3 for abuse-of-trust.

The offense involved the fraudulent use of credit card numbers obtained through a waitress at a restaurant who used a credit card skimmer. Cruz claimed that he should not be subject to the § 2B1.10(b)(1) use-of-device-making-equipment enhancement, because another Guideline provided that this enhancement was inapplicable when a defendant, like Cruz, was already subject to the mandatory term of imprisonment under 18 U.S.C. § 1028A for aggravated identity theft. Rejecting this argument, the Court held that the Guideline only precluded an additional enhancement based on “the transfer, possession, or use of a means of identification,” not based on the use of device-making equipment.


The Court also rejected the argument of a cashier at a Target store that her position as a mere cashier did not create the kind of trust that triggered an “abuse of trust” sentence enhancement. The Court found that the cashier abused the authority of her position at Target to help co-conspirators use credit cards without authorization.

Carillo-Ayala: Firearms sales make drug trafficker safety-valve ineligible

In U.S. v. Carillo-Ayala, No. 11-14473 (March 22, 2013), the Court held that a defendant who sold drugs and firearms was not eligible for a “safety-valve” sentence reduction, because of the “connection” between the firearms and the drugs.




Defendants like Carillo-Avala, who are convicted of trafficking in certain quantities of drugs are subject to statutory mandatory minimum sentences – unless they qualify for the “safety-valve.” Carillo-Avala’s safety-valve eligibility turned on whether there was a “connection” between his drug trafficking offense and his possession of firearms, when his involvement with firearms was limited to his sale of firearms to a drug dealer.



The Court noted that only a “narrow class” of defendants are eligible for the safety-valve. Though rejecting the government’s argument that a “connection” between drugs and firearms existed simply because the firearms were part of the “relevant conduct” for the drug offense, the Court found that a “connection” requires less proof than a showing that firearms were possessed “in furtherance” of a drug offense. The “connection” is established if the defendant possesses a firearm “in close proximity” to drugs, or the firearm “facilitates” the drug offense by “emboldening” the defendant, or instills confidence in others, or helps the defendant avoid detection.



For Carillo-Ayala, the “connection” was established not because the firearms transactions created trust for the drug transactions – “greased” the drug transactions – but because he might have put the money from his firearms transactions to work in his drug enterprise, because the firearms he was selling to a drug dealer would help this drug dealer continue in the drug business and come back to Carillo-Ayala for more drugs, and because of the proximity of the firearms to the drugs. Carillo-Ayala did not bear his burden of showing that the firearms did not facilitate his drug transactions.

Adkins: Habeas relief for Batson violation

In Adkins v. Warden, No. 11-12389 (Feb. 27, 2013) (2-1), the Court granted habeas relief to an Alabama inmate sentenced to death for a 1988 murder, finding that the State exercised peremptory strikes to eliminate potential black jurors in violation of Batson v. Kentucky.




The Court found that the Alabama court failed to consider “all relevant circumstances” in determining whether the exclusion of black jurors resulted from “purposeful discrimination “ The State used peremptory strikes to exclude nine of eleven eligible black jurors. The prosecutor noted the race of every black veniremember, and only black veniremembers, on the jury list the prosecutor relied upon in striking the jury, marking each of them with a “BM” or “BF.” The prosecutor’s reasons for striking jurors were contradicted by the record. An ex parte affidavit prepared by the prosecution was relied on.



Reviewing the State’s use of peremptory challenges de novo, the Court found that the strikes were used in a discriminatory manner. The Court noted that the reasons the prosecutor gave for excluding black jurors were not the basis for excluding similarly-situated white jurors.

Hippolyte: Mandatory minimum Crack Offender Not Eligible for sentence reduction

In U.S. v. Hippolyte, No. 11-15933 (March 14, 2013), the Court held that a crack cocaine offender sentenced in 1996 to a statutory mandatory minimum sentence was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on the recent Guideline Amendments.




The Court rejected the argument that the Guidelines’ new definition of the term “applicable guideline range” made Hippolyte eligible for a § 3582(c)(2) reduction, holding that it has “nothing to do with mandatory minimums.”



The Court also noted that the Fair Sentencing Act (FSA) does not apply retroactively to Hippolyte’s 1996 sentence. Hence, any Guideline reduction could not apply to Hippolyte because his sentence was based on an unchanged statutory mandatory minimum.

Nelson: Honest services statute not void-for-vagueness

In U.S. v. Nelson, No. 12-11066 (March 13, 2013) (2-1), the Court rejected a void-for vagueness challenge to the constitutionality of the honest-services mail fraud statute, and affirmed convictions of mail fraud and bribery of a former member of the Board of the Jacksonville, FL Port Authority.




The Court noted that although Nelson was not paid for his work as a JaxPort board member, he was indisputably a “public official.” He agreed to represent the interests of a private firm that had business with JaxPort in exchange for monthly payments routed through a middleman. This was a “classic” bribery and kickback scenario. Nelson could not complain about vagueness.



The Court also rejected Nelson’s challenge to jury instructions, finding that his counsel agreed to the wording of one instruction and therefore waived the issue, and that the other properly directed the jury to look to Nelson’s state of mind.



The Court also rejected the argument that the district erred, under Fed. R. Evid. 403, in admitting testimony that one year prior to the charged bribery, Nelson met with JaxPort’s CFO and asked that a contractor be terminated and noted that a rival contractor was “ready to go.” The Court noted that the evidence corroborated parts of the government’s case.

Kuhlman: Chiropractor's sentence "substantively unreasonable"

In U.S. v. Kuhlman, No. 11-15959 (March 8, 2013), on a government cross-appeal of a sentence, the Court held that a sentence of probation and community service was “substantively unreasonable,” for a chiroptractor convicted of health care fraud involving close to $ 3 million.




. The advisory Guideline range was 57 to 71 months. After Kuhlman made full restitution of the close to $ 3 million he stole, and performed community service, the district court sentenced him to probation for time served. The Court found that this sentence failed to served the need for general deterrence, an important factor because health care “is so rampant that the government lacks the resources to reach it all.” The Court cited three of its precedents – Livesay, Martin and Crisp – which held that sentences for white collar defendants were too lenient and therefore “outside the range of reasonableness.” The Court added: “The Sentencing Guidelines authorize no special sentencing discounts on account of economic or social status.”

Weeks: Judge may find "different occasions" ACCA enhancement

In U.S. v. Weeks, No. 12-11104 (Jan. 31, 2013), the Court affirmed the imposition of a mandatory minimum 180-month sentence under the Armed Career Criminal Act (“ACCA”), rejecting the argument that the sentencing court’s finding that the prior burglary offenses were not “committed on occasions different from one another” violated the Sixth Amendment, because this finding had to be made by a jury. The Court rejected Weeks’ reliance on dicta from Nijhawan v. Holder, 557 U.S. 29 (2009) that, in a criminal prosecution, “circumstance-specific” facts relating to a prior conviction would have to be found by a jury. The Court therefore held that it was bound by its prior holdings that district court may determine the factual nature of prior convictions, so long as they limit themselves to Shepard-approved sources.




Reviewing for “plain error,” the Court also rejected the argument that Weeks might only have been an accomplice for some robberies that others committed. The Court found no evidence in the charging documents that Weeks merely participated as an accomplice, and no Circuit or Supreme Court caselaw indicating that a charging document’s lack of specificity on this point mattered for ACCA classification purposes.

Hoffman: Mandatory Life Sentence Not Plainly Cruel and Unusual

In U.S. v. Hoffman, No. 12-11529 (Feb. 26, 2013), the Court rejected the argument that a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A)(viii) was “cruel and unusual” punishment in violation of the Eighth Amendment. Hoffman argued that his sentence violated the Eighth Amendment because he committed the two prior convictions that triggered the mandatory life sentence when the was a juvenile.




Reviewing the issue for “plain error” – Hoffman had not preserved the issue in the district court – the Court found no precedent that made the life sentence unconstitutional. The Court noted that Miller v. Alabama, 1232 S.Ct. 2455 (2012) involved a juvenile offender facing punishment for conduct committed when he was a juvenile. Here, Hoffman was an adult offender, not a juvenile.

Dell: Constitution does not require "innovative" defense counsel

In Dell v. U.S., No. 11-12904 (Feb. 27, 2013), the Court rejected a claim that defense counsel was constitutionally defective, under Strickland v. Washington, for failing to argue, either during sentencing or on direct appeal, for a downward variance based on the substantial disparity between the Sentencing Guidelines’ treat of crack and powder cocaine.




At the time of Dell’s direct appeal to the Eleventh Circuit, the Supreme Court had already decided Kimbrough, which held that a district court was authorized to grant a downward variance based on a policy disagreement with the crack guidelines. On appeal, Dell’s appellate counsel failed to seek a vacatur of the sentence based on Kimbrough. Dell’s co-defendants did press the issue, and ultimately, at resentencing, received lower sentences; Dell did not.



Since Dell’s counsel in the district court had also failed to raised a Kimbrough-type argument, the appeal could only have raised Kimbrough in a “plain error” argument.



The Court noted that competent counsel would have been able to show error, because under pre-Kimbrough law the district court treated the crack guideline as mandatory. The error would have been “plain” at the time of appeal. But appellate counsel would not have been able to show that the error affected his substantial rights. Nothing in the record in the district court at the original sentencing indicated that the district court would have imposed a lower sentence, even had a Kimbrough argument been made. Where the record does not provide any indication that there would have been a different sentence, the party with the burden of showing a difference loses. Thus, appellate counsel could not have shown that substantial rights would have been affected. Dell in turn did not receive ineffective appellate assistance of counsel, since he was not prejudiced by counsel’s performance.



The Court also held that trial counsel was not deficient at sentencing for failing to anticipate Kimbrough. The Court noted that it has never required counsel to anticipate future legal developments. Lawyers rarely, if ever, are required to be innovative to perform within the wide range of conduct that encompasses the reasonably effective representation mandated by the Constitution.



[Martin, J., concurring, questioned the Circuit’s rule that substantial rights are not affected when the Court cannot know whether the outcome would have been different. Martin noted that a sentencing hearing is not a forum for a judge “to air his list of grievances” about existing law. Martin noted that in view of a statement by the district court at a subsequent resentencing, Dell likely would have received a lesser sentence had his appellate counsel pressed the Kimbrough issue. Martin nonetheless stated she was bound by Circuit precedent to join the majority].