Jones: Howard error is "plain error"

In U.S. v. Jones, No. 11-11273 (Feb. 25, 2014), the Court held that it was “plain error,” in light of its recent decision in Howard, for the district court to rely, for ACCA sentence enhancement purposes, on a prior conviction for Alabama third-degree burglary. Unlike the defendant in Howard, Jones did not object in the district court to his sentence enhancement based on a prior conviction for Alabama third-degree burglary. The issue was therefore reviewed for “plain error.” The Court found that in light of Howard, there was “error,” and this error was “plain.” The error also affected Jones’ substantial rights, because at resentencing the district court “will be statutorily compelled to give Jones a shorter sentence.” Finally, this seriously affected the fairness, integrity, or public reputation of the judicial proceedings.”

Ramirez-Flores: Pre-Descamps burglary is divisible

In U.S. v. Ramirez-Flores, No. 12-15602 (Feb. 21, 2014), the Court affirmed the imposition of a sentence enhancement for a prior South Carolina burglary of a dwelling qualified as a “crime of violence” under U.S.S.G. § 2L1.1(b)(1)(A)(ii). Because Ramirez-Flores raised the issue for the first time on appeal after briefing, the Court reviewed only for “plain error” his argument that the South Carolina burglary of a dwelling statute is “indivisible.” The Court found that it was not “plain” whether the statute was “indivisible” – it could be read to be “divisible.” Therefore it was not plain error to treat the statute as “divisible.” Turning to Ramirez-Flores’ argument that even under a pre-Descamps, Shepard-based challenge, his prior burglary conviction was not a “crime of violence,” the Court faulted the defendant for failing to raise sufficiently specific objections to the PSI’s description of the burglary to alert the government that it should obtain further documentation about the state court proceeding, i.e. to determine whether Ramirez-Flores burglarized a residence or a secondary structure.

Joseph: No Restitution Offset for Forfeiture Amount

In U.S. v. Joseph, No. 13-12369 (Feb. 21, 2014), the Court held that a defendant is not entitled to offset the amount of restitution owed to a victim by the value of property forfeited to the government. The Court explained that restitution and forfeiture serve distinct purposes. Consequently, a district court has not authority to offset the restitution amount by a forfeiture amount. The Court pointed out that the recipient of the forfeiture – the Department of Justice – and the victim entitled to forfeiture – the IRS – were different entities. The Court noted that the district court had directed an offset in its oral pronouncement of sentence. But Joseph could not avail himself of the rule that an oral pronouncement of sentence trumps a subsequent written judgment (in which the court declined to offset the forfeiture amount), because the district court was without authority to order the offset.

Howard: Alabama Third-Degree Burglary not an ACCA predicate

In U.S. v, Howard, No. 12-15756 (Feb. 19, 2014), the Court, applying the Supreme Court’s decision in Descamps v. U.S., reversed U.S. v. Rainier, and held that because Alabama third-degree burglary is a non-generic, indivisible offense, it does not qualify as a predicate offense under ACCA. The Court explained that the Alabama statute makes it a crime to burglarize a “building,” and then gives a non-exhaustive list of illustrative examples of buildings, some of which, like “watercraft,” fall outside the “building or structure” element of generic burglary. “Illustrative examples are not alternative elements.” As a result, the statute is non-generic and indivisible, which means it does not qualify as a generic burglary under ACCA.

Campbell: Confrontation Clause does not apply to vessel without nationality

In U.S. v. Campbell, No. 12-13647 (Feb. 20, 2014), the Court held that the Confrontation Clause does not apply to the “vessel without nationality” fact that establishes jurisdiction under the Maritime Drug Law Enforcement Act. The Court explained that because Congress had removed this jurisdictional element from consideration by the jury – an element that bore only on diplomatic relations between the United States and foreign governments – the Confrontation Clause did not apply. The Court also rejected the claim that Campbell was entitled to a jury trial on this “preliminary” element. The Court found that Congress has authority under the Felonies clause of the Constitution to assert extraterritorial jurisdiction over narcotics trafficking, rejecting the argument that this clause only applies to capital crimes.

Smith: Flight in vehicle or on foot is "violent felony"

In U.S. v. Smith, No. 12-14842 (Feb. 11, 2014), after a remand from the Supreme Court to reconsider the case in light of U.S. v. Descamps, the Court held that the crime of fleeing a police officer, in violation of Fla. Stat. § 316.1935(2), is categorically a violent felony under the Armed Career Criminal Act. The Court first found that because § 316.1935(2) prohibits only vehicular flight, as distinct from fleeing on foot, the offense posed the inherent risk that made it a violent felony under ACCA. Alternatively, the Court held that fleeing and eluding a law enforcement officer, whether in a vehicle or on foot, is a violent felony under ACCA. The offender, whether on foot or in a vehicle, creates risks comparable to those created by the offenses listed in the ACCA residual clause.

Isnadin: Predisposition to commit a few crimes

In U.S. v. Isnadin, No. 12-13474 (Feb. 14, 2014), the Court affirmed the convictions and sentences of defendants convicted of attempt to possess 500 grams or more of cocaine and of possession of a firearm in connection with a crime of violence or a drug trafficking crime. The defendants were charged with attempted Hobbs Act robbery, attempted cocaine possession, and possession of firearms, all arising out of a sting operation involving the robbery of a fictitious drug stash house. During deliberations, the jury asked whether, if it found that the defendants were entrapped as to the robbery of the stash house, this should affect its verdict as to the other counts. Over defense objection, the trial court instructed the jury to consider entrapment separately as to each count. The jury ultimately convicted on the drug and gun counts, and acquitted on the Hobbs Act robbery counts. On appeal, the defendants argued that because the drug stash robbery, the attempted cocaine possession, and the firearms counts involved a single intertwined “course of conduct,” it was reversible error to instruct the jury to consider the defendants’ entrapment defense separately as to each count. Rejecting this argument, the Court explained that even if the defendants were induced as to all counts, “it may well be that the facts of a given case indicate that an individual defendant is predisposed to commit some crimes, but not others.” Here, it was possible that the defendants “were predisposed to conspire to possess the cocaine in some manner . . . even if they were not predisposed to rob [the stash house].” The Court noted that, during discussions with the undercover agent, the defendants raised the question whether they could obtain the cocaine without robbing the stash house, thus making it “permissible for the jury to conclude that [they] conspired to secure the drugs in their possession by some means, even if not by armed robbery.” Similarly, the jury could have concluded that the defendants were predisposed to possess firearms in furtherance of a conspiracy to possess a large quantity of cocaine, even the defendants were not predisposed to possess firearms to rob the stash house.

Reeves Sufficient Evidence to convict wife of cocaine trafficker

In U.S. v. Reeves, No. 12-13110 (Feb. 6, 2013), the Court affirmed cocaine trafficking convictions of three defendants. The Court rejected a sufficiency of the evidence challenge of the wife of one cocaine trafficker. The Court found that her phone conversation with her husband in which she was attempting to warn him about police activity on a highway, and her husband’s telling her, after he was arrested, to go back to their home and get “that shit out of there,” combined with a cooperating witness’ testimony that she was present when her husband told someone that four kilograms of cocaine had been robbed from their home, and the jury’s discretion to discredit her testimony when she took the stand, sufficed to support her conspiracy conviction. The Court also rejected the argument that a statement by the husband was not admissible under the co-conspirator exception to the hearsay rule, because it was made after he was arrested. The Court noted that the arrest of a co-conspirator does not necessarily end the conspiracy.

Cadet: No equitable tolling with mere gross negligence of attorney

In Cadet v. Florida Dep’t of Corrections, No. 12-14518 (Jan. 31, 2014), the Court found that equitable tolling did not apply to a federal habeas petition filed after expiration of the AEDPA one-year deadline, when the petitioner repeatedly questioned his lawyer’s incorrect advice that the deadline was not about to expire. The Court recognized that in Holland v. Florida, the Supreme Court implied that counsel’s more than “garden variety” neglect would toll the AEDPA deadline. The Court found, however, that more recently in Maples v. Thomas, the Supreme Court had “recast” Holland, to hold that tolling only applies when a lawyer “abandons” his client, and that mere “gross negligence” does not suffice. Applying the abandonment standard, the Court found that Cadet’s lawyer had not abandoned him, because he was not “acting adversely” to Cadet. The lawyer “did not withdraw from representing Cadet, renounce his role as counsel, utterly shirk all of his professional responsibilities, or walk away from their attorney-client relationship.” The lawyer merely stubbornly but in good faith adhered to [his erroneous reading of the law].”