Pineda: Counsel not ineffective in not moving to suppress evidence

In Pineda v. Warden, No. 14-13772 (Sept. 21, 2015) the Court affirmed the denial of habeas relief to a Georgia inmate who claimed his lawyer was ineffective in failing to move to suppress cocaine found in a vacant apartment. The Court agreed with Pineda that the Georgia Court of Appeals incorrectly found that officers had a view of the vacant apartment that they later searched, because such a view was physically impossible. The Court also noted that counsel was not reasonable in believing that a motion to suppress the contents of the apartment would jeopardize a trial defense that Pineda did not live in the apartment and therefore could not have owned the cocaine. Evidence presented in a separate hearing on the search could not have been admissible at trial. But counsel was reasonable in believing that Pineda lacked standing to challenge a search of the apartment, because Pineda had abandoned it. Trial counsel knew that Pineda had not lived in the apartment for several weeks, had a new lease with his aunt at a new apartment, had given away his garage remote and had no access to the apartment. Counsel reasonably decided that Pineda lacked standing to challenge a search of the vacant apartment. Though counsel could have argued against abandonment, reasonable jurists could agree that counsel was not deficient in not perfecting a motion to suppress.

McLean: Insufficient Evidence of Jurisdictional element of federal bribery

In U.S. v. McLean, No. 14-00061 (Sept. 24, 2015), the Court rejected the government’s appeal of the district court’s grant of a judgment of acquittal for a defendant charged with bribery in violation of 18 U.S.C. § 666. The Court found insufficient evidence of the jurisdictional element of the statute, that an organization, here, the Margate Community Redevelopment Agency (“MCRA”) of which McLean was a Commissioner, receive in excess of $10,000 under a Federal program. The Court recognized that the City of Margate received federal funds and the City in turn provided funds to MCRA, and the County used federal funds to construct six bus shelters which were placed in MCRA’s care. But this “minimal” showing was insufficient to establish a relationship to the structure operation and purpose of a federal scheme. A mere “stimulus” package is not a federal program. The Court rejected the government’s argument that the jurisdictional element was a question of law, finding, to the contrary that it was a question of fact for the jury to find.

Matchett: Vagueness does not apply to Sentencing Guidelines

In U.S. v. Matchett, No. 14-10396 (Sept. 21, 2015) (Pryor, J. Carnes & Siler), the Court rejected the argument that the defendant was stopped in violation of the Fourth Amendment, and rejected the argument that the Guideline’s residual clause definition of a “crime of violence” was unconstitutionally vague in light of Johnson v. U.S. A police officer stopped Matchett when he saw him walking down a residential street holding an unboxed flat-screen television during the morning of a weekday. The Court held that because residential burglaries were common during work hours, commonly involved flat-screen tvs, and common in this neighborhood, the police officer had sufficient reasonable suspicion of illegal activity to stop Matchett. The officer also had reason to frisk Matchett once Matchett’s demeanor changed, and he looked left and right as if he was going to flee, and Matchett, while going through his pockets looking for identification, never touched his right front pocket (where he had a gun). Turning to sentencing, the Court affirmed the district court’s ruling that Matchett’s two prior convictions for burglary of an unoccupied dwelling were “crime[s] of violence” because they “involve[d] conduct that presents a serious potential risk of physical injury to another,” the residual clause of the Guidelines’ career offender provision. The Court explained that because the Guidelines are merely advisory, they cannot violate a defendant’s right to due process by being vague. The Court rejected the analogy to the Ex Post Facto Clause, which applies to the Guidelines, finding that it “in no way” informed the Due Process vagueness analysis. The Court noted the policy argument against applying a residual clause that “lacks precise meaning,” stating that this argument “is properly addressed to the Sentencing Commission.” The Court noted that no other Circuit has held that the Guidelines can be unconstitutionally vague [citing cases that all preceded the Supreme Court’s 2013 in Peugh, which held that the Ex Post Facto Clause applied to the advisory Guidelines]. The Court held that burglary of a dwelling creates the kind of risk that qualifies as a “crime of violence.” Finally, the Court affirmed the imposition of a two-level enhancement under U.S.S.G. § 3C1.2 for recklessly creating a substantial risk of death or substantial bodily injury, based on Matchett’s struggle with the police officer while a handgun was in his pocket. The Court noted the risk that the gun could have gone off accidentally. [Query: Was the panel correct that Ex Post Facto principles “in no way” guide the Due Process analysis, or could one reason that, since the Ex Post Facto Clause requires notice of advisory Guideline punishment at the time an offense is committed, the Due Process Clause in turn requires that this advance notice be clear?]

Harris: 2241 petition not permitted when 2255 was adequate

In Harris v. Warden, No. 14-14550 (Sept. 16, 2015), the Court affirmed the dismissal of a habeas petition filed under 28 U.S.C. § 2241, because a motion under § 2255 was adequate to test the legality of his conviction, and thus a § 2241 claim was not permitted. The Court noted that Harris’ claim was a constitutional claim and therefore cognizable under § 2255.

Slaton: Sentencing finding violated the "non-contradiction" principle

In U.S. v. Slaton, No. 14-12366 (Sept. 14, 2015), the Court affirmed convictions of a defendant who fraudulently obtained federal worker’s compensation from the Department of Labor by falsely claiming that a disability prevented him from resuming his duties for the U.S. Post Office. The Court rejected all of Slaton’s challenges to the sufficiency of the evidence, noting that Slaton’s ex-girlfriend testified that he drove to and from Alabama to Arkansas without any apparent difficulty, at a time when he was claiming that his back pain prevented him from making a 30 minute drive to work. Turning to sentencing issues, the Court agreed with the parties that the district court miscalculated the special assessment, because it counted certain misdemeanors as felonies. The assessment for a felony is $100 per count of conviction; the assessment for a misdemeanor is $20 per count. The Court agreed, in part, with Slaton’s claim that under the correct “net loss” Guideline approach to loss, Slaton might have been entitled to some of the medical benefits he received for his back injury. If there was error, the Court noted, it would only affect the restitution amount, since the loss amount for Guidelines purposes would not change the offense level. On cross-appeal, the government challenged the district court’s downward variance to zero months of incarceration. The Court noted that the district court relied on its finding that Slaton lost worker’s compensation to which he might arguably have been entitled. The Court noted that this finding contradicted the jury’s verdict on one count of conviction, which “necessarily found that [Slaton] was not entitled to the worker’s compensation benefits he received.” The sentencing court’s finding therefore violated the “non-contradiction principle” which holds that a district court’s finding at sentencing cannot be “inconsistent with any of the findings that are necessarily implicit in a jury’s guilty verdict.” The district court therefore vacated the sentence and remanded for resentencing, without expressing any view on whether the non-incarceration sentence might otherwise have been substantively reasonable.

Walker: Knock and talk exception applies

In U.S. v. Walker, No. 15-10710 (Sept. 3, 2015), the Court held that the “knock and talk” exception to the warrant requirement applied, and rejected the defendant’s claim that the search of his home violated the Fourth Amendment. The police approached Walker while he was inside his car, with the dome light on, at 5:00 am, inside his open-sided carport near his home. The police were authorized to knock on the car window and talk to Walker. The small distance from the front door of the home did not cause the entry to exceed the knock and talk exception. When the police saw a light on in the car, and lights on in the house, it was not unreasonable for them to tap on the vehicle and ask Walker to step out.

Hough: Defense counsel "opened the door" for question on character witnesses

In U.S. v. Hough, No. 14-12156 (Sept. 9, 2015), the Court affirmed convictions for making false statements to the IRS, but vacated the sentence. The Court rejected Hough’s challenge to the sufficiency of the evidence, finding sufficient evidence that she failed to disclose her financial interest in foreign bank accounts. The Court agreed with Hough that the prosecutor asked her character witnesses a question that presumed the defendant’s guilt, and that ordinarily such questions are improper. However, defense counsel had “opened the door” for these questions when he had asked these witnesses, on direct examination, whether their opinion of Hough’s character would change based on the allegations against her. Turning to sentencing, the Court found that, for tax loss calculation purposes, the district court failed to find “foundational facts” to support its conclusion that Hough’s entities should be treated as partnerships, instead of corporations. The Court therefore remanded for resentencing.

Hesser: Affirming tax evasion conviction

In U.S. v. Hesser, No. 13-11712 (Sept. 8, 2015), the Court affirmed convictions for submitting false claims to the IRS, and for tax evasion, but reversed the restitution order because it included amounts that Hesser still owed for tax deficiencies, but which the IRS had not actually lost. Reviewing the challenges to the sufficiency of the evidence only for a "manifest miscarriage of justice" because Hesser at trial failed to move for a judgment of acquittal, the Court found sufficient evidence, particularly from Hesser's own trial testimony, to support the convictions. Reviewing the claimed trial errors only for "plain error" because Hesser at trial failed to object, the Court found no grounds to reverse. The Court did not "condone" the prosecutor's misleading statement that Hesser relied on a disbarred attorney for advice, but found that this isolated remark did not affect Hesser's substantial rights. Turning to sentencing, the Court rejected Hesser's challenge to the imposition of an obstruction of justice enhancement. The Court affirmed the trial court's finding that Hesser improperly attempted to influence his wife's testimony before she testified for the government at his trial.

Cunningham: 3583(h) does not govern incarceration for revocation of supervised release

In U.S. v. Cunnigham, No. 14-14993 (Sept. 2, 2015), the Court rejected the argument that 18 U.S.C. § 3583(h) limited the length of term of incarceration that a district court could impose on a defendant who violated his supervised release. The Court found that § 3583(h) places a cap on post-revocation supervised release so that a defendant is not at risk for an unlimited cycle of imprisonment and supervised release. However, § 3583(e)(3) places a felony class limit (here, two years) on the length of imprisonment a district court can impose on revocation of supervised release. The two provisions apply “harmoniously.”

Martinez: Indictment for 875(c) violation defective post-Elonis

In U.S. v. Martinez, No. 11-13295 (Sept. 3, 2015), on remand from the Supreme Court for consideration in light of Elonis v. U.S., the Court reversed its earlier holding and remanded the case with instructions to the district court to dismiss the indictment without Martinez. The indictment charged Martinez with making a threat to injure another person, in violation of 18 U.S.C. § 875(c). Martinez moved the dismiss the indictment, because it failed to allege that she subjectively intended to convey a threat to injure others. The district court denied the motion, and the Court affirmed. The Court noted that Elonis held that to violate § 875(c), a person must subjectively intend to convey a threat. Whether a “reasonable person” regards the communication as a threat does not suffice. Because Martinez’ indictment failed to allege that she subjectively intended to convey a threat, and because, post-Elonis, this is an essential element of § 875(c), the indictment was deficient.

Braun: Prior Batteries do not qualify under ACCA

In U.S. v. Braun, No. 13-15013 (Sept. 8, 2015), the Court held that because two of the defendant’s prior convictions did not qualify as “violent felonies” under ACCA, the district court erred in imposing ACCA’s mandatory minimum sentence. One of the prior convictions relied on by the district court was a conviction for aggravated battery on a pregnant woman, in violation of Fla. Stat. § 784.045(1)(b). This was a “divisible” statute, because one could violate it by “touching,” or by “striking,” a pregnant woman. The government noted that in a later unrelated case, Braun failed to object to a Presentence Investigation Report that stated that this offense involved “pushing” and “choking” the victim. But the Court held that a Presentence Report in another case was not a Shepard document – not a document that the district court could rely on in determining whether a prior conviction counted as a “violent felony” under ACCA. Thus, the district court erred in relying on this Presentence Report. And because a conviction is presumed to rest upon no more than the least of the acts criminalized, here, mere “touching” did not qualify as a “violent felony.” The Court found that, as to Braun’s prior conviction for battery on a police officer, the Shepard documents only allowed it to conclude that Braun “touched” a police officer. Thus, the Court distinguished its prior decision in U.S. v. Turner, and concluded that Braun’s battery on a police officer did not qualify under ACCA.