Rushin: Defense precluded from asking cooperating witnesses about specific future sentences

In U.S. v. Rushin, No. 14-15622 (Dec. 21, 2016), the Court affirmed the convictions and sentences of prison guards charged with abusing prisoners and covering up the incidents. The Court declined to address whether the district court erroneously limited one defendant’s counsel CJA voucher, finding that no appellate jurisdiction existed because the notice of appeal did not indicate that counsel intended to participate as an appellant. The Court rejected the defendants’ challenge to the district court’s ruling that during cross-examination of the government’s cooperating witnesses who had pled guilty, the defense could not inquire regarding the specific sentences these cooperating witnesses might have received, absent their cooperation. The Court noted that the defendants were permitted to ask whether the cooperating witnesses would have faced a more severe penalty, or expected a lesser sentence. However, “the precise number of years the cooperating witnesses may have faced provides little, if any, value above those questions defense counsel were permitted to ask.” Moreover, “due to the fact that the sentence range applicable to these witnesses would reveal the sentence range for defendants, the proposed additional examination could invite jury nullification. The risk of jury nullification is accentuated by the fact that defendants were guards and the victims prisoners.” The Court also rejected the defendants’ claim that the district court unduly limited their defense when it precluded them from introducing evidence of “unrelated inmate violence.” The Court explained that unrelated inmate violence did not make the defendants’ assaults more or less likely or more or less justified. Moreover, jury nullification appeared to be the reason for introducing this evidence – an improper basis. Turning to sentencing, the Court rejected the argument that the district court unduly relied on the conduct underlying the civil rights violations, for which the defendants were acquitted, to punish them for obstruction of justice. A district court may rely on acquitted conduct at sentencing. [Jordan, J., concurring, stated that in certain cases it could be a Confrontation Clause error to preclude the defense from asking a cooperating witness about the mandatory minimum sentence he would otherwise be facing.]

Green: Harmless Rule 404b errors

In U.S. v. Green, No. 14-12830 (Nov. 30, 2016), the Court affirmed the conviction and sentence of 262 months for a defendant charged with being a felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Court rejected Green’s challenge to the sufficiency of the evidence: Green was hiding in the same room in which the firearm was discovered, had been living at this residence, and had admitted to the arresting officer that the firearm was his. The Court also rejected the argument that Green’s admission was uncorroborated and therefore should not have been considered, finding that there was circumstantial evidence of constructive possession. The Court agreed with Green that the district court should have redacted the indictment’s reference to prior “crimes” in the plural, given that Green had stipulated to having a single prior conviction. The Court recognized that communicating to the jury that a defendant could have “dozens of convictions” increases the risk of unfair prejudice. However, the error was harmless in light of the significant circumstantial evidence. The ammunition possession conviction that the government relied on for purposes of Rule 404(b) had been entered after Green pled nolo contendere to the charge. Citing Federal Rule of Evidence 803(22), which precludes the use of a nolo plea to prove the truth the matter asserted in a judgment of conviction, the Court concluded that the admission of Green’s prior conviction was insufficient to prove that Green actually committed the prior act at issue. However, again, the error was harmless in light of the “ample” evidence “independent of the Rule 404(b) conviction,” supporting guilt. Moreover, the nolo conviction was “not emphasized during trial or closing argument,” as the district court gave a cautionary Rule 404(b) instruction, and the prosecutor in closing told the jury that the 404(b) conviction was only admitted for the “very limited purpose” of showing whether Green had the “intent” to possess the items at issue. Turning to the sentence, the Court found no error in sentencing Green under the Armed Career Criminal Act (“ACCA”), based on prior Florida battery convictions. The Court noted that the Supreme Court left open the possibility of relying on Shepard documents to determine whether a prior battery conviction qualified as a “crime of violence.” Here, these documents (the agreed factual basis for Green’s nolo plea) indicated that Green “struck” another against his will. Specifically, that the victim said that Green “hit him in the face.”

Cobb: Affirming 324-month sentence for fraudulent tax return filings

In U.S. v. Cobb, No. 15-12817 (Nov. 30, 2016), the Court affirmed the 324-month sentence of a defendant convicted of mail and wire fraud conspiracy, aggravated identity theft, and firearm possession, in a scheme involving using stolen identities to file hundreds of fraudulent tax returns. The Court rejected Cobb’s challenge to the $2.5 million loss amount to support an 18-level sentence enhancement, and the determination that the offense involved more than 250 victims, finding that the government presented sufficient evidence to support these calculations. The Court also rejected the challenge to the $1.8 million restitution award, finding that this was the amount of money the Internal Revenue Service paid out. The Court found that Cobb waived a challenge to the sentence enhancement for use of an unauthorized access device, and a challenge to the finding that a prior serious drug offense qualified him for an enhanced sentence, finding that he withdrew his objections to these enhancements at the sentencing hearing.

Ammar: Speedy Trial Act violation

In U.S. v. Ammar, No. 13-12044 (Nov. 29, 2016), the Court vacated a defendant’s conviction because of a violation of the Speedy Trial Act, and remanded for the district court to consider whether the dismissal of the indictment should be with, or without, prejudice. On September 1, 2011, Ammar was indicted, with other defendants, in a case in which the government was contemplating seeking the death penalty. This indictment started the 70-day Speedy Trial Act deadline. However, over Ammar’s repeated objections, the district court set the case for trial one year later. The district court rejected Ammar’s motion to dismiss for a Speedy Trial Act violation on the ground that the trial date was “by agreement of everybody.” This finding was factually inaccurate, as Ammar had repeatedly objected to the length of the delay. Further, an agreement of the parties does not satisfy the required “ends of justice” finding to justify tolling the Act’s 70-day deadline. The Court rejected the argument that a district court need not utter “magic words” to toll the deadline, finding that, even if this were possible, here the district court explicitly declined to make ends-of-justice findings, relying instead, erroneously, on the “agreement of everybody.” The Court left it to the district court to apply the statutory factors and make the determination whether the indictment should be dismissed with or without prejudice.

Gundy: Georgia burglary qualifies as generic burglary

In U.S v. Gundy, No. 14-12113 (Nov. 23, 2016), the Court (2-1) held that a Georgia burglary conviction qualified as a “crime of violence” for purposes of the Armed Career Criminal Act (ACCA). The Georgia statute defined burglary as unlawful entry “within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another . . .” The Court recognized that this definition swept more broadly than generic burglary, because it encompassed not only entry into buildings, but also into vehicles. However, based on Georgia caselaw, which requires an indictment to specify the location of an alleged burglary, the Court concluded that each of the locations were “locational elements,” not merely alternative means of committing burglary. As a result, the statute was “divisible.” Each location was a separate crime. Thus, the Court could examine the record of Gundy’s prior burglaries to determine whether Gundy’s prior burglaries qualified as generic burglaries. Because Gundy’s prior burglaries involved a “dwelling house” or a “business house,” they all qualified as generic burglaries for ACCA purposes. [Jill Pryor, J., dissenting, interpreted Georgia’s standard jury instructions’ reference to “building or dwelling” as referring to a single element, not as identifying separate crimes, and noted that, in burglary trials, Georgia juries are not required to agree on the type of dwelling at issue].

Error in verdict form merely clerical

In U.S. v. Davis, No. 15-10927 (Nov. 22, 2016), the Court rejected the argument that the trial court erred when it amended the judgments to change a count of conviction from “Robbery” in violation of 18 U.S.C. § 924(c), to possession of a firearm during a crime of violence in violation of § 924(c). The Court noted that the error in the initial judgment arose out of a mistake in the jury’s verdict form. However, the indictment, the parties’ closing arguments, the jury instructions, and the jury’s questions during deliberations indicate that it understood that the charge in this count was not “robbery,” but a § 924(c) firearm violation. Moreover, the overwhelming evidence in the case supported this conviction. The jury “inescapably” found that the defendants “used a gun.” The error in the verdict form was merely clerical.

Esprit: Florida burglary is not an ACCA "crime of violence"

In U.S. v. Esprit, No 14-13066 (Nov. 21, 2016), the Court held that, post-Johnson, Florida burglary in violation of Fla. Stat. § 810.02(1)(b)(1) is not a “crime of violence” for purposes of a sentence enhancement under the Armed Career Crimnal Act (ACCA). The Court determined that Fla. Stat. § 810.02(1)(b)(1) is an “indivisible” statute, because a jury is not required in its verdict to identify the means that were used to commit the burglary, whether by entering a building or entering a building’s “curtilage.” Unlawful entry of a building or its curtilage are possible alternative means of committing the offense of burglary, not alternative elements of the burglary offense. As a result, the “modified categorical approach,” which authorizes examining the facts underlying a conviction, does not apply. Consequently, since the Supreme Court in James held that the inclusion of “curtilage” in Florida’s burglary offense takes this offense outside the definition of generic burglary, which requires entry into, or remaining in, a building or other structure, Florida burglary did not qualify as a “crime of violence.” The Court therefore vacated Esprit’s sentence and remanded to the district court with instructions that he be resentenced without the ACCA enhancement.

Leon: No plain error constructive amendment

In U.S. v. Leon, No. 15-12578 (Nov. 16, 2016), the Court, on plain error review, rejected the argument that the district court constructively amended the indictment by allowing the defendant to be convicted of attempting to cause a bank not to file required currency transaction reports (CTRs) concerning currency transactions exceeding $10,000. The Court recognized that the word “structure” is contained in 31 U.S.C. § § 5423(a)(1), not in 5324(a)(3), the statute under which Leon was charged and convicted, and that the parties used the term “structuring” during trial. But both statutes are said to refer to a “structuring” transaction. As a result, there was no “plain error.” The Court also rejected a sufficiency of the evidence challenge.

Hernandez-Alberto: Incompetency claim tolls habeas limitations period

In Hernandez-Alberto v. Sec., Fla. Dep’t of Corrections, No. 14-14092 (Nov. 4, 2016), the Court held that, for purposes of the statute of limitations governing federal habeas petitions, a properly filed Florida postconviction petition claiming incompetency remains “pending” through the final termination of the postconviction proceedings despite the state court’s having found the prisoner competent before the end of those proceedings. Because the petitioner’s application was properly filed, and remained so throughout the period of his postconviction proceeding, it tolled the deadline to file his federal habeas petition.

Fritts: 1989 Florida robbery qualifies as ACCA "crime of violence"

In U.S. v. Fritts, No. 15-15699 (Nov. 8, 2016), the Court held that a 1989 armed robbery conviction in violation of Fla. Stat. § 812.13 qualified as a “crime of violence” under the Armed Career Criminal Act (“ACCA”). The Court noted that in U.S. v. Dowd, decided in 2006, it had held that a 1974 conviction for armed robber was a violent felony under ACCA. Under Dowd, a Florida armed robbery conviction qualifies under ACCA’s elements clause. The Court rejected the argument that the Supreme Court’s decision in Curtis Johnson altered the analysis. The Court further noted that U.S. v. Lockley, decided in 2011, had held that a 1991 armed robbery qualified as a crime of violence under the elements clause of the career offender Guideline. Lockley’s reasoning also governed Fritts’ 1989 conviction. The Court rejected the argument that, under Florida law, prior to 1997, only the slightest force was sufficient to convict a defendant of Florida robbery. The Court held that, to the contrary, the robbery statute required resistance that is overcome by the physical force of the offender.

Hughes: No speedy trial violation

In U.S. v Hughes, No. 14-14181 (Nov. 4, 2016), the Court rejected the defendant’s argument that his prosecution for being a felon-in-possession of a firearm should have been dismissed on Speedy Trial Act grounds. The Court found that the oral, pre-trial motion of the government for the detention of the defendant automatically triggered an excludable period from that day until the conclusion of the hearing on that motion. As a result, no Speedy Trial Act violation occurred. The Court rejected the argument that the period of delay was caused by the defendant’s non-excludable motion for a continuance. The Court also rejected Hughes’ claim that a juror was struck in violation of Batson. The government explained that it struck the juror because he had committed a felony and violated the terms of his resultant probation; these were not facially discriminatory reasons. The Court also rejected a Crawford v. Washington challenge to the admission of statements by a 911 caller. Citing Davis v. Washington, the Court explained that the 911 caller’s statements were non-testimonial. The Court further ruled that a jury instruction that told the jury that it took account of a defendant’s false exculpatory statement did not violate Hughes’ right to remain silent, when evidence was introduced that Hughes (falsely) denied knowledge of the firearm that was found by law enforcement. A false statement by a defendant may be considered as substantive evidence of guilt.

Campo: Circumstantial evidence supports murder conviction

In U.S. v. Campo, No. 14-15541 (Nov. 1, 2016), the Court affirmed the convictions and sentences of a defendant convicted of murder, firearm trafficking, and firearm possession. The Court rejected Campo’s challenge to the sufficiency of the evidence, noting the circumstantial evidence that supported the verdict of conspiracy to murder. The evidence showed that Campo intended to kill a former gun trafficking accomplice in order to prevent him from communicating with police about the scheme. Campo bragged about the killing almost a year after the fact. Cell phone records placed Campo’s phone near the scene of the crime at the time of the murder. DNA evidence also supported the verdict. Ballistics tests matched the firearms that were used in the murder to the type of barrel Campo used on his firearm. Sufficient evidence also supported the firearm trafficking conviction. On plain error review, the Court rejected the argument that, under Fed. R. Evid. 701, the victim’s brother should not have been allowed to testify that when he called police after seeing blood in a warehouse, he told police that he thought that Campo had killed his brother. The Court noted that this opinion testimony was based on the brother’s perceptions at the time, and therefore admissible. Under Fed. R. Evid. 704, this testimony was not objectionable even though it addressed an ultimate issue in the case. On plain error review, the Court also rejected the argument that it was a Double Jeopardy violation to convict Campo of causing the death of a person while using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(j), and also of the lesser offense of using a firearm in furtherance of a crime of violence, in violation of § 924(c). The Court noted the absence of Supreme Court caselaw supporting this argument, and Circuit precedent suggesting it was without merit.

Seabrooks: Florida robbery is an ACCA "crime of violence"

In U.S. v. Seabrooks, No. 15-10380 (Oct. 19, 2016), the Court rejected challenges to the “aiding and abetting” jury instruction, and, as to sentencing, held that prior Florida robbery convictions qualified as violent felonies under the Armed Career Criminal Act (“ACCA”). Seabrooks was convicted of aiding and abetting in the possession of a stolen firearm, and in being a felon in possession of a firearm. On plain error review, the Court rejected Seabrooks’ argument based on Rosemond v. U.S. that to obtain an aiding and abetting instruction, the government must prove that a defendant had “advance knowledge” of his accomplice’s actions. The Court stated that an aiding and abetting conviction does not invariably require that the aider and abettor know the extent of his confederate’s criminal intentions before he initiates the offense conduct. Rather, it can apply if a defendant does not withdraw from the scene once he realizes the confederate’s criminal designs he qualifies as an aider and abettor. Here, Seabrooks received the stolen firearms from his accomplice and placed them in the console of a vehicle. Further, there was no plain error regarding whether Rosemond requires advance knowledge of a principal’s status as a convicted felon, as neither the Eleventh Circuit nor the Supreme Court have resolved this question. Turning to sentencing, the Court held that, under U.S. v. Lockley, a Florida armed robbery qualified as a “crime of violence” under ACCA. The Court rejected Seabrooks’ argument that Lockley should be limited to post-1999 Florida robberies. The Court noted that the Florida robbery statute has not changed from the 1970s to the present. The Court further noted that since 1922, the Florida Supreme Court has held that the force that is required to make the offense a robbery is force sufficient to overcome a victim’s resistance – the kind of force that qualifies an offense, under ACCA, as a crime of violence. [Martin, J., concurring, did not agree that the scope of the Florida robbery statute had not changed since the 1970s. Judge Martin noted that under McCloud, a 1976 Florida Supreme Court case, “any degree of force” sufficed to convert larceny into robbery. This rule changed in 1997, when the Florida Supreme Court decided Robinson. Seabrooks’ convictions occurred in 1997, after Robinson.]

Plate: jail for inability to pay restitution is improper

In U.S. v. Plate, No. 15-13928 (Oct. 5, 2016), where the district court imposed a jail sentence, in lieu of probation, because the defendant was only able to pay $40,000 toward the $142,000 she owed in restitution, the Court reversed the sentence for being substantively unreasonable,. The district court abused its discretion by giving dispositive weight to Plate’s inability to pay restitution. The government recognized that the district court would have imposed a sentence of no further incarceration if Plate had been able to pay restitution. The district court based its sentence of incarceration solely on an impermissible factor. Because the district court had reiterated its earlier position when it denied Plate bond pending appeal, and characterized her arguments on appeal as “frivolous,” the Court remanded the case for resentencing before a different district court judge.

Wilchcombe: Prosecution may comment on post-arrest/pre-Miranda silence

In U.S. v. Wilchcombe, No. 14-14991 (Oct. 4, 2016), the Court affirmed convictions of defendants charged with drug trafficking while on board a vessel subject to U.S. jurisdiction en route from Haiti to the Bahamas. The Court rejected the defendants’ argument that it should review en banc its holding in U.S. v. Campbell that the MDLEA violates Due Process because it does not require proof of a nexus between the United States and a defendant. The Court also rejected the argument that the Bahamian government’s “statement of no objection” was not clear enough to inform the U.S. that the Bahamian government consented to its exercise of jurisdiction over the vessel, finding that it communicated the “substance” of consent. The Court rejected Wilchcombe’s argument that his “mere presence” on the boat sufficed to sustain his conspiracy conviction, pointing out that the boat contained 895 kilograms of narcotics, much of it stored on deck, and had long been acquainted with the others on the boat, including its captain. Acknowledging that the circuits are split on whether the prosecution can comment at trial on a defendant’s silence prior to being given Miranda warnings, the Court noted that in the Eleventh Circuit this is not error, and therefore not a basis for a mistrial. Even if it was error, it was harmless in light of the ample evidence of guilt, and that as to one defendant it was used for impeachment, which is permitted. The Court rejected the argument that the government destroyed the vessel in bad faith without photographing it, and in repatriating one of the occupants to Haiti. The Coast Guard allocated its resources to recovering bales thrown overboard, and it was mere “speculation” that this occupant would have provided exculpatory testimony. Finally, the Court rejected the argument that Fed. R. Evid. 404(b) precluded admission of evidence that one of the defendants was previously arrested while captaining a boat carrying drugs. This evidence tended to prove this defendant’s knowledge that drugs were present, and made his lack of knowledge defense less plausible. [Jordan and Walker, JJ. concurred, but argued that Eleventh Circuit precedent holding that the government can use post arrest/pre-Miranda silence is misguided and should be reconsidered en banc, stating that the trigger for the constitutional protection of silence should be custody, not the recitation of Miranda warnings.]

Takhalov: On panel rehearing, insufficient evidence on count

In U.S. v. Takhalov, No. 13-12385 (Oct. 3, 2016), on panel rehearing, the Court agreed with defendant Pavlenko that insufficient evidence supported one of Pavlenko’s convictions for wire-fraud. The Court ruled that American Express could not have relied on Pavlenko’s purportedly fraudulent email since it received this email after it had already approved a charge. Accordingly, the Court reversed the conviction.

Vail-Balon: Mere touching is not a crime of violence

In U.S. v. Vail-Bailon, No. 15-10351 (Sept. 28, 2016) (2-1), the Court held that when it is committed by “mere touching,”Florida felony battery in violation of Fla. Sta. § 784.041 does not qualify as a “crime of violence” for purposes of U.S.S.G. § 2L1.2. The Court noted that § 784.041 is a “divisible” offense. Here, no Shepard-approved documents established under which alternative element Vail-Balon was convicted. The Court therefore assumed that he was convicted under for “actually and intentionally touching” a victim. Simple battery, under Florida law, contains the same touching element, and can be satisfied by any intentional physical contact, no matter how slight. But the elements clause of § 2L1.2 requires “violent force.” The Court noted that at oral argument Vail-Bailon asserted that a person can be guilty of felony battery in Florida if the offender taps another person on the shoulder at the top of stairs, and the person falls down the stairs and suffers grievous bodily harm. The government did not challenge that interpretation at oral argument. Such a crime does not involve the use of “violent force.” “Florida battery by mere touching cannot qualify as a ‘crime of violence,’ no matter what the injury resulting from the mere touching might turn out to be. Citing Leocal, which held that driving under the influence was not a crime of violence, the Court noted that an action that does not normally cause bodily harm, like touching, only qualifies as a “crime of violence” if the offender engages in it “with some type of intent to harm another.”

White: Prior Alabama drug convictions count as ACCA predicates

In U.S. v. White, No. 14-14044 (Sept. 21, 2016), the Court rejected the defendant’s argument that his prior Alabama drug trafficking convictions qualified under ACCA as a “serious drug offense.” White’s prior Alabama offense was for possessing marihuana “for other than personal use.” White argued that he could have possessed marihuana to administer or dispense it. The Court rejected this as a mere “theoretical possibility.” The Court also rejected the argument that its precedent in U.S. v. Robinson, which had rejected the same argument, had been abrogated by the Supreme Court subsequent decision in Descamps. Descamps’ holding that the modified categorical approach applies only when a statute is divisible “has no bearing” on whether possession of marijuana for other than personal use necessarily involves an intent to distribute, that is, a “serious drug offense.” The Court likewise rejected the argument that White’s prior cocaine conviction was not a predicate ACCA offense, because it was merely based on a quantity of cocaine, not necessarily manufacturing, distributing, or possessing with intent to do either. The Court noted that it had rejected this same argument previously, finding one could infer an intent to traffic in cocaine from the quantity of cocaine involved. The Court again rejected the argument that its prior precedent was no longer controlling in light of Descamps.

Cruickshank: Reversing denial of minor role reduction

In U.S. v. Cruickshank, No. 14-13754 (Sept. 20, 2016), the Court affirmed convictions for drug trafficking on the high seas, in violation of 46 U.S.C. § 70503. The Court held that its precedent in U.S. v. Campbell foreclosed a challenge to the constitutionality of the statute. The Court also rejected a challenge to the sufficiency of the evidence, finding that the evasive maneuvers of the vessel while being followed by a Coast Guard helicopter, and other evidence, sufficed. The Court also rejected the defense challenge to the district court’s reliance, for jurisdictional purposes, on a State Department certification that Jamaica had not accepted a claim of nationality for the vessel. The Court noted that under the statute, jurisdiction was not an element of the offense. The Confrontation Clause was therefore not implicated by the admission in evidence of the State Department certification. Turning to sentencing, the Court reviewed the district court’s denial of a “minor role” Guideline sentence reduction in light of the amendments to this Guideline that took effect in November 2015, amendments that clarified the meaning of this Guideline. The Court noted that the district court stated that the quantity of cocaine being transported was so large that no participant in the scheme could have been eligible for a minor role reduction. However, in light of the Court’s precedent in U.S. v. DeVaron, and the factors identified in the amended Guideline, it was legal error for the district court to say that drug quantity could be the only factor to be considered. The Court noted that Cruickshank did not load the drugs on the vessel, reconstruct the vessel, fuel the vessel, attend the planning meetings for the trip, or otherwise appear to have any role concerning the quantity of drugs involved. The Court therefore vacated the minor role reduction denial, and vacated the case for the district court to consider “the totality of the circumstances.”

Sullivan: Ineffective post-conviction counsel

In Sullivan v. Sec., Fla. Dep’t of Corrections, No. 15-13993 (Sept. 20, 2016), the Court affirmed the grant of habeas relief to a Florida inmate who claimed that post-conviction counsel was ineffective for failing to investigate a claim that trial counsel was ineffective in counseling Sullivan to reject a 7-year plea offer and to go to trial on an voluntary intoxication defense, when voluntary intoxication was no longer a valid defense under Florida law, and Sullivan, a habitual offender, received a 30-year sentence. The failure to investigate was objectively unreasonable. Had post-conviction counsel investigated, he would have learned about the 7-year plea offer, and would have determined that it was ineffective advice to rely on a defense that had been abolished years earlier.

Difalco: 851 notice is not jurisdictional

In U.S. v. Difalco, No. 15-14763 (Sept. 20, 2016), the Court, reversing Circuit precedents, held that the failure of the government to file a notice of prior conviction, as required by 21 U.S.C. § 851, is not a jurisdictional defect. “Section 851 is essentially a claims-processing rule that has no impact on the district court’s subject-matter jurisdiction.” Therefore, the notice requirement of Section 851 is subject to waiver. Difalco’s plea agreement contained an appeal waiver. This waiver knowingly waived Difalco’s right to challenge a § 851 defect in his sentence. Moreover, even if the waiver was not knowing, there was no defect that gave rise to “plain error.” Though the government’s § 851 notice was “hardly a model to be emulated by prosecutors in future cases,” the “scrivener’s errors” it contained did not result in Difalco not being put on notice of the prior conviction upon which the government was relying. Nor did the district court’s statements at sentencing – at which it varied downward below the Guideline range – indicate that Difalco’s sentence was affected by any error. The Court also rejected the argument that the Magistrate Judge committed error during its Rule 11 colloquy, finding that Difalco was informed of the mandatory minimum punishment on account of his prior felony convictions.

Matchett: Rehearing Denied

In U.S. v. Matchett, No. 14-10396 (Sept. 13, 2016), the Eleventh Circuit denied rehearing en banc from the panel decision, which had held that the void for vagueness doctrine does not apply to the sentencing guidelines.

Cox: No "new judgment" for AEDPA purposes where amended judgment did not affect sentence

In Cox v. Sec., Fla. Dept of Corrections, No. 13-15718 (Aug. 26, 2016), the Court held that an amended judgment of a Florida court that dismissed one of the counts of conviction did not qualify as a “new judgment” for purposes of avoiding AEDPA’s bar on second or successive habeas petitions filed more than one year after a judgment became final. The Court noted that the dismissal of the count of conviction did not affect the sentence, as the trial court had imposed a suspended sentence on this count, and he was serving a life sentence on the remaining counts. As a result, Cox was not “in custody” under this count, and the “new judgment” rule did not apply.

Hunter: Government breached plea agreement

In U.S. v. Hunter, No. 15-12640 (Aug. 26, 2016), the Court vacated a defendant’s sentenced because the government breached the plea agreement. The plea agreement provided that the government would recommend at sentencing an acceptance of responsibility sentence reduction. Hunter pled guilty to his drug trafficking charges. In response to the presentence investigation report, the government, instead of requesting a reduction for acceptance of responsibility, sought an upward departure or variance. The district court decided to give the acceptance of responsibility reduction, but then, at the government’s urging, imposed a 60-month sentence, an upward departure or variance from the Guideline range of 18-24 months. Hunter’s plea agreement contained an appeal waiver; but an appeal waiver does not include a waiver of a government’s breach of a plea agreement. The Court found that the government breached its promise to recommend an acceptance of responsibility sentence reduction. The government claimed that it was relieved of this obligation because, prior to the plea agreement, Hunter had testified at a suppression hearing in a manner that the district court found not to be credible, and it argued that this fell within one of the exceptions of the plea agreement. But “the government cannot avail itself of [exceptions to the plea agreement] based solely on facts of which it was aware prior to entering the plea agreement.” The government claimed that it anticipated that the district court would impose an obstruction of justice enhancement. But the government failed to condition its obligation to recommend the acceptance reduction on a specific ruling with regard to obstruction. The government cannot read the plea agreement as “a promise it knew it did not have to keep.” This would “induce a guilty plea in exchange for nothing.” The government claimed that Hunter was not entitled to any remedy, because the district ultimately disregarded its objection to an acceptance of responsibility reduction. The Court rejected this argument. “[W]e are not concerned with whether the district court was influenced by the government’s recommendation (or lack thereof); instead, our focus in on the interests of justice.” The breach occurred before the district court imposed sentence; any actions by the district court thereafter could “neither moot nor cure the government’s breach.” The Court therefore applied one the applicable remedies in this circumstance: it remanded the case for resentencing before a different district court judge.

Tharp: No ineffective assistance of counsel

In Tharpe v. Warden, No. 14-12464 (Aug. 25, 2016), the Court denied habeas relief to a Georgia inmate sentenced to death for a 1990 murder. The Court rejected Tharpe’s ineffective assistance claim, finding that a fairminded jurist could easily have concluded that counsel’s investigation was reasonable assistance. The Court found that Tharpe had failed to identify any “red flags” that would have required further investigation of his background. The Court also rejected Tharpe’s claim that he suffered from cognitive impairments that made him ineligible for the death penalty. He was able to graduate high school, and engage in routing commercial transactions.

Wilson: On habeas review, court will not "look through" summary disposition

In Wilson v. Warden, No. 14-10681 (Aug. 23, 2016), the Court (en banc) (6-5), affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1996 murder. Wilson had sought habeas relief in Georgia state courts unsuccessfully: his request for a certificate of probable cause was summarily denied by the Georgia Supreme Court. The Court held that this adjudication was an adjudication on the merits. The Court would not “look through” this denial to the reasoning of the lower court. Wilson was required to show that there was no reasonable basis for the Georgia Supreme Court’s ruling, which he failed to do.

Jones: No habeas relief for 1991 murder

In Jones v. Sec., Fla. Dep’t of Corrections, No. 13-15053 (Aug. 25, 2016), the Court affirmed the denial of habeas relief to a death row inmate sentenced to death for a 1991 murder. The Court rejected the argument that counsel at the penalty phase was ineffective for failing to present mental health mitigation evidence. The Court deferred to the Florida Supreme Court’s determination that mitigating evidence would have been undercut by other mental health evidence that indicated that Jones was not suffering from any mental illness. The Court also found that Jones had not carried his burden of showing that he was prejudiced by trial counsel’s failure to object to his alleged shackling at trial. “The evidence establishing Jones’s guilt was overwhelming.”

Gonzalez: No Double Jeopardy violation for convictions on two conspiracies

In U.S. v. Gonzalez, No. 13-15878 (Aug. 23, 2016), the Court rejected the Double Jeopardy challenges of a defendant convicted of conspiracy to defraud the U.S. in violation of 18 U.S.C. § 371 and a separate count of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349. The Court noted the Double Jeopardy test is whether each offense requires proof of a fact which the other does not. Here, the § 371 conspiracy required proof of an overt act, whereas the health care fraud conspiracy did not. The § 371 required the United States government to be a victim whereas health care fraud did not. Hence, there was no Double Jeopardy violation in convicting Gonzalez under both statutes. On plain error review, the Court rejected Gonzalez’ argument that the jury instructions mistakenly told the jury that a conviction of one conspiracy would require a conviction of the other charged conspiracy. The Court further found that even if the instruction was mistaken, there was “more than ample evidence” to support Gonzalez’ conviction for both conspiracies.

Phillips: Civil writ of bodily attachment is valid warrant under Fourth Amendment

In U.S. v. Phillips, No. 14-14660 (Aug. 23, 2016), the Court held that, under the Fourth Amendment, the police can validly arrest a person based on a civil writ of bodily attachment for unpaid child support. The Court noted that the Fourth Amendment requires a warrant to be “particular, sworn, and supported by probable cause.” The Florida writ in Phillips’ case met these requirements because it issued only after a person was found liable by a preponderance of the evidence for civil contempt for failure to pay child support. The Court rejected the argument that the warrant must be based on a crime, as opposed to a civil offense, pointing out that bench warrants based on civil contempt have been held not to present a problem under the Fourth Amendment. The Court also noted that even if material witness warrants might not satisfy the Fourth Amendment, this would not affect the decision because writs of bodily attachment, like bench warrants, are based on a “violation of law” – here, civil contempt. Turning to sentencing, the Court held that Phillips had waived his challenge to his 15-year sentence as an armed career criminal, because his plea agreement stated that he understood that the district court “must” impose a sentence of no less than 15 years, and at sentencing he affirmatively asked the district court to sentence him to 15 years.

Clay: Affirming health care fraud convictions

In U.S. v. Clay, No. 14-12373 (Aug. 11, 2016), in a 124-page opinion, the Court affirmed convictions of defendants convicted, after a three-month trial, of filing false Medicaid expense reports. After a length recitation of the facts, the Court rejected challenges to the sufficiency of the evidence. The Court found “abundant” evidence of false expenses, noting that the firm’s own forensic accountant testified that reported expense amounts were false. The Court found that Florida’s “80/20” law, and implementing contracts, mandated that 80% of the premium paid to a health plan must be expended for health care services, and could not count as administrative expenses or overhead. The defendants submitted false reports to avoid these mandated requirements, and knew their reports were false. The Court also affirmed the convictions for making false statements to federal agents. The Court also rejected a challenge to jury instructions. The defendants argued that the jury instruction regarding their “deliberate indifference to the truth” lowered the standard to recklessness, instead of an intent to defraud. The Court found that the instruction linked “deliberate indifference” to “intent to defraud.” Further, the trial proceeded under a theory of actual knowledge rather than deliberate indifference. The Court also rejected the defendants’ challenge to the district court’s ruling that their compensation could be admitted in evidence. The Court noted that the district court instructed the jury that the defendants’ wealth had nothing to do with their guilty, but was admitted only to show their “financial motive” to commit the charged frauds. The Court also rejected a challenge to the admissibility of a restated financial statement, generated while the company was under investigation.

Parker: Baptiste bars SOS grant for applicant whose application was previously denied

In In re: Leslie Parker, No. 16-13814-J (Aug. 10, 2016), the Court reversed its earlier grant of an application to file a second or successive § 2255 motion. A member of the panel which had earlier granted Parker’s application learned of a conflict requiring recusal. As a result, the Court had to decide the request anew. Since its earlier grant, the Court had decided In re Baptiste, which held that it must dismiss an application from a prisoner, like Parker, whose prior request had previously been denied. The Court therefore now denied Parker’s application. [Rosenbaum and Jill Pryor, concurred but stood by their view that Baptiste “is incorrect as a matter of law.”].

Devon Chance: Granting SOS to 924(c)/Hobbs Act conspiracy applicant

In In re: Devon Chance, No. 16-13918-J (Aug. 8, 2016) (Tjoflat, Wilson, Jill Pryor), the Court granted an application for leave to file a second or successive § 2255 motion to an applicant who was convicted under 18 U.S.C. § 924(c). The Court noted that the predicate offense for the § 924(c) offense was conspiracy to violate the Hobbs Act. As in In re Pinder, the law is “unsettled” as to whether this companion conviction was valid, post-Johnson. The Court recognized that Chance received concurrent sentences on substantive Hobbs Act robbery offenses, offenses that are still valid § 924(c) predicates post-Johnson. However, the sentences were not “fully concurrent” because the $100 fines on each count were cumulative. Chance therefore had at least a pecuniary interest in the review of his sentence. Further, as in In re Davis, the terms of incarceration were not dictated by a mandatory minimum. For these reasons, the concurrent sentence doctrine that the Court applied in In re Williams did not apply here. The Court then addressed the Court’s recent statement in In re Jasper Moore that “the district court cannot grant relief in a § 2255 proceeding unless the movant . . . proves that he was sentenced using the residual clause.” Though recognizing that its own discussion of Moore was dicta, the Court stated that this statement in Moore was dicta, because it was necessary to the decision to grant an SOS application. The Court added that the statement in Moore was “quite wrong.” First, the statement implied that a district court deciding a § 2255 motion “can ignore decisions from the Supreme Court that were rendered since that time in favor of a foray into a stale record.” But cases like Descamps and Mathis are binding. If the district court determined that Hobbs Act conspiracy does not qualify under the elements clause, in light of Descamps and Mathis, then that would be conclusive proof that the defendant was wrongfully sentenced under the residual clause – regardless of whether the district court “uttered the magic words ‘residual clause.’” Second, eligibility under § 2255 should be based solely on “a chance remark.” Quoting Rivers v. Roadway Express, Inc., the Court noted that a judicial construction of a statute is an authoritative statement of what the statute meant “before as well as after the decision of the case giving rise to that construction.”

Nejad: No habeas relief for Georgia inmate who claimed he was not told about his right to testify

In Ali Nejad v. Warden, No. 15-14856 (July 27, 2016), the Court denied habeas relief to a Georgia inmate who claimed that his trial lawyers in his Georgia state rape trial were ineffective in failing to advise him that he could testify in his own defense despite counsel’s advice to the contrary. The Court noted that the transcript of the trial did not indicate that the trial judge informed Nejad of his right to testify. Nonetheless, noting that there were gaps in the transcript, and crediting the prosecutor’s testimony that she definitely remembered that Nejad was informed by the judge of his right to testify because it was her first rape trial and she was getting ready to cross-examine the defendant and was relieved when he answered the judge that he would not testify, the Court deferred to the State trial court’s determination, in the face of conflicting testimony, that Nejad knew he could testify regardless of the advice of his attorneys.

Jones: Denying SOS based on Baptiste

In In re Kiwanis Jones, No. 16-14053-J (July 27, 2016), the Court denied an application to file a second or successive § 2255 motion, because the defendant had previously filed a “nearly identical Johnson-based” application that had been denied. Based on Baptiste, the Court was bound to dismiss the latest application, because it raised the same claim that was previously rejected. [Judges Rosenbaum and Jill Pryor, concurring, stated that Baptiste was wrongly decided.]

Bradford: Denial of SOS application is jurisdictional

In In re Brad Bradley Bradford, No. 16-14512-J (July 27, 2016), after the Eleventh Circuit denied a post-Johnson application for leave to file a second or successive § 2255 motion, Bradford filed another application, presenting the same claim. The Court held that it lacked jurisdiction to consider an application “premised exclusively on a claim that was presented in a prior application.” The Court recognized that it might have previously ruled on applications presented a second time. But these cases did not address the jurisdictional bar, and were therefore not binding on the jurisdictional issue. Citing Anderson and Baptiste, the Court held that a dismissal of a successive application is “with prejudice.” The Court noted the caselaw that holds that when it denies a successive application, the district court lacks jurisdiction to consider the § 2255 motion. The Court denied Bradford’s application. The Court stated that the grant of certiorari in Beckles was not a basis for granting a successive application, or holding a case in abeyance. The Court stated: “If the Supreme Court decides in Beckles, or some other decision, that the residual clause of § 4B1.2(a)(2) of the career offender provisions of the guidelines is unconstitutional, Bradford will have a new claim under § 2255(h)(2) for which he can then file an application to file a second or successive § 2255 motion. It will not be a Johnson/Welch claim, but a Beckles claim.” The Court therefore denied Bradford’s request that his application be held in abeyance pending Beckles.

Moore: SOS application granted when it was "unclear" whether sentence rested on residual clause

In In re Jasper Moore, No. 16-13993-J (July 27, 2016), the Court granted an application for leave to file a second or successive § 2255 motion because it was “unclear” whether at his sentencing the district court had relied on the residual clause of ACCA. The Court noted that this was merely because Moore had made a prima facie showing; in the district court, he would bear the burden of proving that his sentence was unlawful. A movant cannot meet this burden “unless he proves that he was sentenced using the residual clause and that the use of that clause made a difference in the sentence.” [Query: Would one way a movant be able to meet his burden be by showing that his prior conviction does not qualify under the elements or enumerated clauses, and that his sentence must therefore rest on the now-unconstitutional residual clause?]

Sams: SOS denied for 924(c) offender with predicate 2113(a) bank robbery

In In re Sams, No. 16-14515-J (July 26, 2016), the Court denied an application for leave to file a second or successive § 2255 motion for an applicant who challenged his conviction under 18 U.S.C. § 924(c). The predicate offense for Sams’ 924(c) conviction was a bank robbery “by force and violence, or by intimidation,” in violation of 18 U.S.C. § 2113(a). The Court held that a bank robbery “by intimidation” qualifies as a crime of violence, because it involves the threat to use physical force. The Court also rejected Sams’ challenge to his career offender Guideline designation. The Court pointed out that even if Johnson were to apply, retroactively, to the career offender guideline, this would not benefit Sams, because he had two prior convictions that qualified under the elements clause.

Birge: Affirming imposition of "vulnerable victim" enhancement

In U.S. v. Birge, No. 15-15042 (July 26, 2016), the Court affirmed the imposition of a “vulnerable victim” sentence enhancement, pursuant to U.S.S.G. § 3A1.1(b)(1), for a chief clerk of a Georgia probate court who used access to bank accounts through probate court to conservatorships of minors and incapacitated adults to write herself checks. Birge argued that the “vulnerable victim” enhancement should apply, because Eleventh Circuit caselaw indicated that the guideline applied to persons who “target” a vulnerable victim, and there was no evidence that she had done so. The Court pointed out that while an older version of the Guideline had used the word “target,” it was amended to now read that it applies to a person who knew or should have known that the victim was vulnerable. The Court found that its prior discussion of “target” was dicta, because none of them involved a defendant who was not eligible for the enhancement unless he targeted victims. Here, because Birge knew or should have known that the victims of her scheme were vulnerable, the enhancement applied.

Gomez: Granting SOS to 924(c) applicant

In In re: Emilio Gomez, No. 16-14104-J (July 25, 2016), the Court granted an application to file a successive § 2255 application an inmate who was sentenced under 18 U.S.C. § 924(c). The Court recognized that when the law is “unsettled” on the question whether Johnson might invalidate the residual clause of § 924(c), it grants a successive application. Here, the indictment’s § 924(c) count was unclear on whether Gomez used a firearm during an attempted Hobbs Act robbery, during a conspiracy to commit Hobbs Act robbery, or during a drug trafficking offense. The Court therefore did not know what the predicate § 924(c) crime had been. The Court had previously in Pinder granted a successive application when the predicate was conspiracy to commit Hobbs Act robbery. Further, the Court had yet to decide whether attempted Hobbs Act robbery is a “violent felony” under ACCA. The Court therefore left the issue for the district court to decide in the first instance.

Anderson: SOS claim based on mandatory guidelines dismissed with prejudice until Beckles is decided

In In re: Wayne Anderson, No. 16-14125 (July 22, 2016), the Court (2-1) denied an application for leave to file a second or successive § 2255 motion, filed by a defendant sentenced in 1995 under the then-mandatory career offender Guideline. The Court recognized that in Beckles, the Supreme Court will decide whether the residual clause of the career offender Guidelines is unconstitutionally vague, and if the Supreme Court so rules, Anderson will be able to file another SOS application. However, until the Supreme Court so rules, the denial of Anderson’s SOS application was with prejudice. [Martin, J., dissenting, would have granted the application in light of the pending Beckles case, to avoid forcing Anderson to refile an application. Martin also disagreed that the denial of an SOS application can be “with prejudice,” reasoning that there is no rule against filing multiple applications to file a successive § 2255 petition.]

Antrone Davis: Concurrent sentence does not foreclose granting SOS application

In In Re: Antrone Davis, No. 16-13779-J (July 21, 2016), the Court (2-1) granted an application for leave to file a second or successive § 2255 motion. One of Davis’ prior convictions was for burglary of a car, an offense which did not meet the definition of burglary of a building or structure required to qualify under ACCA. The majority recognized that Davis was serving a 327-month ACCA sentence and a concurrent 327-month sentence for drug trafficking. The majority further recognized that in In Re Williams, it had recently denied an SOS application because the defendant was serving a concurrent sentence. The majority distinguished In Re Williams because the concurrent sentence in that case was “unrelated” to the ACCA sentence, and it was a mandatory [statutory] life sentence [pursuant to 21 U.S.C. § 841(b)(1)(A), for drug traffickers with two or more prior felony drug offenses]. Here, by contrast, the sentence on the drug trafficking count was not “unrelated” to the ACCA count, because the sentencing judge sentenced Davis “based on a single Sentencing Guidelines range.” “The judge’s sentencing decision was therefore no doubt informed by Davis’s ACCA designation, which means Davis may have suffered ‘adverse collateral consequences’ if his ACCA sentence turns out to be unlawful.” [Dissenting, Jill Pryor, J., pointed out that Davis’ concurrent 327-month sentence was based on the career offender Guideline, which requires only two prior qualifying felonies. Davis had two prior qualifying felonies (it was his third felony, for burglary, that was not valid ACCA predicate). Both of these prior felonies qualified under ACCA (and the career offender Guideline). Thus, even if the residual clause of the career offender Guideline was unconstitutional, Davis’ concurrent 327-month sentence would be “unaffected.” Judge Pryor did not interpret In re Williams to be limited to concurrent sentences that were mandatory. A concurrent sentence, even if not mandatory, would be valid and not affected by Johnson.]

Burgest: Career Offender not eligible post-Johnson

In In Re: Earl Burgest, No. 16-14957-J (July 21, 2016), the Court denied a career offender’s application for leave to file a second or successive § 2255 motion. The Court noted that in In Re Griffin it had already held that career offenders do not qualify for post-Johnson § 2255 relief. The Court added that even if Johnson applied to a career offender, it would not entitle Burgest to relief, because his prior convictions for manslaughter, and kidnapping, were enumerated as qualifying prior felonies in the career offender Guideline. This provision would govern regardless of whether the Guidelines residual clause was unconstitutional.

Clayton: No SOS grant post-Matchett for career offender

In In Re: Charles Clayton, No. 16-14556-J (July 18, 2016), the Court, citing U.S. v. Matchett, summarily denied an application for leave to file a second or successive § 2255 motion filed by a defendant sentenced as a career offender under the Sentencing Guidelines. [In a lengthy concurrence, Martin, J., noted that outside the Eleventh Circuit “[e]very other court of appeals has either held or assumed that Johnson makes the language [of the career offender guideline’s residual clause] unconstitutional.” Martin noted that the requirement of “fair notice” applied to the Guidelines by the Supreme Court in Peugh under the Ex Post Facto Clause also applied in a vagueness-Due Process analysis. Martin further noted the Court’s inconsistent treatment in its recent SOS decisions on whether and when Descamps applies to determining the validity of an ACCA sentence, post-Johnson, even though all of these SOS decisions “set binding precedent.”].

Dean: Denying SOS for 924(c) defendant with assault predicate

In In re: Sheldon Dean Christopher Watt, No 16-14675-J (July 21, 2016), the Court denied an application for leave to file a second or successive § 2255 application, filed by a defendant convicted under 18 U.S.C. § 924(c) who claimed that his predicate conviction for this offense was no longer valid, post-Johnson. The Court noted that § 924(c) has an elements clause. Watt’s prior conviction was for assault with intent to rob a Postmaster and in so doing putting the life of the person in jeopardy by use of a firearm, in violation of 18 U.S.C. § 2114. It did not matter that Watt was charged with aiding and abetting because the acts of a principal become those of the aider and abettor. Further, the presentence investigation report, whose factual statements the district court adopted without objection, described how Watt pointed a firearm at the victim and made her lie on the floor while he fled. Thus, even if the residual clause of § 924(c) was void for vagueness, Watt’s predicate offense qualified as a “crime of violence.”

Jeffrey Smith: Denying SOS to 924(c) defendant convicted of carjacking

In In re: Jeffrey Smith, No. 16-13661 (July 18, 2016), the Court denied leave to file a second or successive § 2255 motion to a defendant sentenced under 18 U.S.C. § 924(c), who claimed that this statute’s residual clause was unconstitutionally vague, and that his carjacking conviction, in violation of 18 U.S.C. § 2119, did not meet the requirements of this statute’s force clause. Interpreting its 1994 decision in U.S. v. Moore, the Court held that carjacking involving taking or attempting to take by force and violence or by intimidation, and this meets the force clause, which requires the use, attempted use, or threatened use of physical force. [Jill Pryor, dissenting, argued that Moore could be interpreted to have relied on the residual clause of § 924(c), not its force clause, particularly in light of the Supreme Court’s 1999 decision in Holloway v. U.S.].

Hunt: SOS career offender may be able to file post-Beckles

In In re: William Hunt, No. 16-14756-J (July 18, 2016), the Court denied an application for leave to file a second or successive § 2255 motion, pointing out that Hunt was sentenced as a career offender under the Sentencing Guidelines, and that the Eleventh Circuit in Matchett held that the residual clause of the career offender Guideline is not void for vagueness. The Court recognized, however, that the Supreme Court recently granted certiorari in Beckles, a case “which raises the question of whether Johnson applies to the Guidelines. Should Beckles abrogate our decision in Matchett, Hunt may be able to file a § 2255 petition based on Johnson.” [Wilson, Jill Pryor and Rosenbaum, JJ., each concurring, set forth their reasoning on why Matchett was wrongly decided].

Baptiste: Denying renewed SOS application

In In re: Gary Baptiste, No. 16-13959-J (July 13, 2016), the Court denied Baptiste’s second or successive post-Johnson § 2255 motion that claimed that the residual clause of 18 U.S.C. § 924(c) was unconstitutionally vague. The Court noted that it had previously denied Baptiste’s SOS application, and Baptiste was raising “precisely the same claim that he raised in round one.” “It would be odd indeed if Congress had intended to allow federal petitioners to refile precisely the same non-meritorious motions over and over again while denying that right to state prisoners.” Because the Court “previously rejected” Baptiste’s claim on the merits, it was required to dismiss this one. The AEDPA does not permit a prisoner “to file what amounts to a motion for reconsideration under the guise of separate and purportedly ‘new’ application when the new application is the same as the old one.” The law of the case doctrine barred a different result for the new application.

Takhalov: Convictions reversed in B-Girls case

In U.S. v. Takhalov, No. 13-12385 (July 11, 2016), the Court reversed wire fraud and other related convictions arising out of the South Beach B-Girls scheme, finding that the district court erroneously declined to instruct the jury, as the defendants requested, that the jurors must acquit if they found that the defendants had tricked the victims into coming into a bar but nevertheless gave the victims exactly what they asked for and charged them exactly what they had agreed to pay. The Court explained that a “scheme to deceive” only becomes a “scheme to defraud” in violation of the wire fraud statute if the scheme caused harm. Here, the B-girls may have deceived victims to go to bars and order drinks, by not disclosing the B-girls’ financial arrangement with the clubs, but unless the defendants schemed to lie about the quality or price of goods sold to the victims, no wire fraud occurred. The defendants’ proposed instruction to this effect was a correct statement of the law. The Court recognized that the instructions given by the district court “logically entailed” that the defendants intended to cheat the club customers out of money, but the instruction did not “substantially cover” the defense. This difference was meaningful because “the average juror is not Mr. Spock.” Turning to whether the instructional error was “harmless” error, the Court noted that the test was whether the faulty jury instruction did not contribute to the verdict, or whether the record contained evidence that could lead a jury to find that the defendants lacked the intent to defraud. Here, the defendants testified that they did not intend to defraud customers. The Court rejected the government’s reliance on “overwhelming evidence” of guilt, pointing out that the question is not whether the jury could still have convicted the defendants if the instruction had been given, but whether the jury could have acquitted them. Here the evidence “was not so overwhelming that an acquittal would have been irrational.” The Court also reversed the related money laundering counts.

Gordon: No SOS relief for 924(c) conviction based on substantive Hobbs Act robbery

In In Re: Darren Demeatrie Gordon, No. 16-13681 (July 8, 2016), the Court denied leave to file a second or success post-Johnson motion under § 2255. Gordon was convicted under 18 U.S.C. § 924(c) of using a firearm during and in relation to crime of violence: a Hobbs Act robbery. Post-Johnson, Gordon claimed that the “crime of violence” definition in the residual clause of § 924(c) was unconstitutionally vague. The Court ruled, however, that the substantive offense of Hobbs Act robbery – unlike a conspiracy to commit a Hobbs Act robbery – qualified as a “crime of violence” under the use-of-force clause, without regard to the residual clause of § 924(c). This means Gordon’s § 924(c) sentence would be valid even if Johnson makes the § 924(c) residual clause unconstitutional.

Parker: Florida burglary may not qualify, post Descamps, under ACCA

In In re: Leslie Parker, No. 16-13814-J (July 7, 2016), the Court granted leave to file a second or successive post-Johnson motion under § 2255. At Parker’s sentencing, he qualified under ACCA based in part on a 1983 Florida conviction for burglary of a dwelling. The district court did not specifically address whether it was relying on the now-invalidated residual clause. The Court recognized that in United States v. Weeks, it had determined that a Florida burglary conviction constituted an ACCA predicate based on the enumerated clause. However, Weeks predated Descamps, and it is therefore not a binding precedent that holds that Florida burglary is divisible under Descamps. Accordingly, Parker had made out a prima facie case. The Court noted that the PSI indicated that Parker had additional prior convictions that were not addressed at sentencing. But the government could now waive reliance on these other convictions, and the Court therefore did not address them.

Vazquez: State expressly waived procedural default

In Vazquez v. Sec., Fla. Dep’t of Corrections, No. 15-10321 (July 1, 2016), the Court reversed the denial of habeas relief to a Florida inmate, finding that the district court erroneously concluded that Vazquez had defaulted his Sixth Amendment Confrontation Clause claim, because the State had waived procedural default. The Court recognized that generally, a petitioner must exhaust all state court remedies, and, if he fails to do so, the result is procedural default, “which bars habeas relief.” Here, however, in the district court the State in its brief expressly waived reliance on procedural default. Further, the district court did not point to any factors that required a rejection of the State’s waiver.

Raleigh: Denying habeas relief for 1994 murders

In Raleigh v. Sec., Fla. Dep’t of Corrections, No. 14-14198 (June 30, 2016), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for 1994 murders. The Court rejected, inter alia, the argument that the State put on contradictory cases for two accomplices at two trials, one that portrayed Raleigh as a “drunken boob,” another at his own trial that portrayed him as a cold, calculating murderer. The Court found that the “drunken boob” comment was made in passing, and did not accurately characterize the state’s argument.

Trailer: Affirming sex offender's life term of supervised release

In U.S. v. Trailer, No. 15-14583 (June 30, 2016), the Court affirmed a life term of supervised release, rejecting a claim that this was substantively unreasonable to a sex offender who was ordered not to have contact with minors, yet nonetheless lied to his probation officer about the fact that he was living with his wife’s four minor children. The Court noted that the life term was within the statutory range of five years to life. The Court noted that “having molested his then girlfriend’s eight-year-old daughter, he was thereafter prohibited from having contact with children under the age of 18.” He nonetheless had contact with his wife’s minor children, all the while lying about it to his probation officer. The Court also noted that the defendant was free to petition the court for early termination or modification of his supervised release.

Williams: No SOS grant because of life sentence on other count

In In Re: Dennis Williams, No. 16-13013-J (June 24, 2016), the Court recognized that an applicant’s motion for leave to file a second or successive § 2255 motion made out a prima facie case as to one count of conviction. But, because Williams had been sentenced to a concurrent term of life on another count he could not show that he could “benefit” from § 2255 relief, and the Court consequently denied the application. Williams was sentenced for drug trafficking, and under 21 U.S.C. § 851, was subject to a life term for a repeat drug trafficking offender. This sentence was not subject to a post-Johnson challenge. He was also sentenced as a career offender, but he could not, under Eleventh Circuit precedent, challenge his career offender designation even post-Johnson. Thus, while Williams’ sentence under another count of conviction could be challenged post-Johnson, this challenge would be “futile” in view of Williams § 851 sentence, and his career offender status.

Jackson: Granting SOS for 1975 Florida aggravated assault and pre-2000 Florida robbery

In In re: Steven Jackson, No. 16-13536-J (June 24, 2016), the Court granted an application for leave to file a second or successive § 2255 motion, post-Johnson. At Jackson’s sentencing, the district court did not announce which ACCA definition it was relying on in sentencing Jackson under ACCA. The Court recognized that Turner v. Warden, 709 F.3d 1328 (11th Cir. 2013) “held that a conviction for aggravated assault under Florida Statute § 784.021 met ACCA’s elements clause definition”, but Turner did not apply because Jackson’s 1971 aggravated assault conviction predated the enactment of the 1975 statute at issue in Turner. The issue whether this 1971 conviction qualified for ACCA purposes was for the district court to decide. The Court also left for the district court to decide whether Jackson’s pre-2000 Florida robbery conviction qualified under ACCA. The Court noted that it had not reached this pre-2000 version of the statute in Lockley, and that, without the residual clause, no binding precedent makes undeniably clear that pre-2000 robbery qualifies under ACCA. The Court recognized that Jackson’s § 2255 motion, once filed in the district court, could be filed more than one year after Johnson, that is, beyond the one-year statute of limitations. The Court noted several possible equitable factors that could allow Jackson’s § 2255 motion to go forward, even if untimely, and left it for the district court to decide this issue in the first instance.

McCall: Summary denial of SOS for Guidelines applicant

In In re: Datrist McCall, No. 16-12972-J ((June 17, 2016), in a one-paragraph order, the Court denied an application for file a second or successive § 2255 motion to a defendant sentenced under the Sentencing Guidelines. [Judge Martin, concurring, noted that, unlike the Eleventh Circuit, all eleven of the other courts of appeals have either held or assumed that Johnson makes the residual clause of the career offender Guideline unconstitutionally vague. A grant of McCall’s application “would give him a shot at the relief he could have pursued had he been sentenced anywhere but in the Eleventh Circuit.” Judge Martin noted that the Eleventh Circuit had denied “hundreds” of applications by scrutinizing whether the applicant would prevail on the merits, reaching whether a defendant committed every crime listed in his presentence investigation report in the manner alleged in that report, or even deciding questions of first impression about how a state’s courts interpret the elements of its own criminal statute – without input from a lawyer. Judge Martin pointed out that other courts are not scrutinizing the merits of these cases at this stage. “If even a single one of those orders are mistaken, then a prisoner has been doomed to serve an unlawful prison sentence, without possibility of further review.” ].

Rogers: SOS Clear/Unclear test

In In Re: Joseph Rogers, Jr., No. 16-12626-J, the Court denied an application for a second or successive (SOS) § 2255 motion, ruling that “because binding precedent clearly classifies as elements clause offenses the convictions Mr. Rogers’ sentencing court relied on as ACCA predicates, his application does not make out a prima facie case under Johnson.” The Court explained that it applies a “clear/unclear” test. It denies an SOS application if it is clear that the motion will not contain a Johnson claim. This is clear when the sentencing court specifically identified three prior qualifying ACCA convictions under the elements or enumerated crimes clauses, and/or under binding precedent the prior convictions qualified as ACCA predicates under the elements or enumerated crimes clauses. If not, the Court applies Descamps, and, if it is unclear from binding precedent that the state statute is divisible under Descamps, the applicant has made out a prima facie case. “When neither the sentencing court’s finding on which ACCA clause or clauses applied nor binding on-point precedent forecloses an applicant’s assertion that his sentence arose under ACCA’s residual clause, we look to Descamps to ensure we apply the correct meaning of ACCA’s words.” And at this point, unless post-Descamps binding precedent clearly resolves the residual clause ambiguity, his application should be granted. The Court noted that deciding complex issues of first impression, such as whether a state statute was “divisible,” would be impracticable in a SOS proceeding. Citing the law-of-the-case doctrine, the Cout also noted that it had an obligation to determine whether its binding precedent “has been abrogated by intervening caselaw.” With respect to Rogers, in Turner v. Warden Coleman the Court had previously held that Florida aggravated assault, and Florida aggravated battery, qualified as a violent felony under the elements clause. Because Turner is binding precedent, Rogers did not make out a prima facie case.

Hires: Denial of SOS because aggravated assault and robbery at gun point are violent felonies, and Descamps does not apply

In In Re: Morris Vernell Hires, No. 16-12744-J (June 15, 2016), the Court denied an application for a second or successive (SOS) § 2255 motion, ruling that a “Florida conviction for aggravated assault under § 784.021 is categorically a violent felony under the ACCA’s elements clause.” The Court stated that it had held in Turner v. Warden Coleman FCI (Medium), that an aggravated assault conviction “will always include as an element the threatened use of physical force against the person of another.” The Court further held that Hires’ 1995 conviction for robbery qualified as a violent felony. The Court noted that the unobjected-to facts in Hires’ PSI state that Hires pointed a gun at a victim and took the victim’s property at gunpoint. In determining the nature of a prior conviction, a sentencing court may rely on undisputed facts in the PSI. A Florida armed robbery qualifies as a violent felony. Turning to Descamps, the Court noted that while Descamps’ 2013 divisibility holding is retroactive for a first § 2255 motion, it is not retroactive for purposes of a second or successive § 2255 motion. The Court stated that “Johnson does not serve as a portal to relitigate whether a prior robbery conviction or another conviction qualifies under the elements clause.” The Court added that having in prior cases denied SOS applications because Descamps was not a new rule of constitutional law, it would now be “arbitrary and inequitable” to permit petitioners who can now cite Johnson to pursue SOS § 2255 motions only because their enhancements are ultimately invalidated by Descamps, not Johnson at all.

Adams: Granting SoS application where record "ambiguous" whether district court relied on residual clause, and Descamps applied

In In Re: Keith Devon Adams, No. 12519-J (June 15, 2016), the Court granted authorization to file a second or successive (SOS) § 2255 motion to a defendant sentenced under ACCA. It was unclear from the record which clause of ACCA the district court employed when it concluded that Adams’ prior burglary conviction under Fla. St. § 810.02 qualified as a “violent felony.” There was “some suggestion” that the district court considered the residual clause. At the time, Florida’s burglary statute was deemed an ACCA predicate under the residual clause, rather than the elements clause, or the enumerated clause. Further, the statute did not appear to be “divisible.” Rather than setting out the critical place-of-entry element in the alternative – i.e., “a building or its curtilage” – the place-of-entry element encompassed a “building of any kind . . . together with the curtilage thereof.” Thus, under Descamps, Adams’ burglary convicted cannot serve as a predicate offense under the enumerated crimes clause as an alternative. The Court recognized that in In Re Griffin, the Court had concluded that Decamps did not itself announce a new rule of constitutional law sufficient to satisfy § 2255(h)(2). However, the petitioner in Griffin relied on Descamps “as a standalone claim,” because the district court did not rely on the residual clause. In contrast, for Adams, the ambiguity surrounding the district court’s sentencing decision required inquiry into the text of the ACCA to determine which clause, if any, applied. The Court therefore looked to guiding precedent, such as Descamps, to interpret ACCA’s words correctly. “When this Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law.” Descamps “is not an independent claim that is itself subject to AEDPA’s gatekeeping requirements.”

Pierre: Affirming convictions and sentences for $1.9 million fraudulent tax refunds

In U.S. v. Pierre, No. 14-10589 (June 14, 2016), the Court affirmed the convictions and sentences of defendants charged with fraudulently obtaining approximately $1.9 million in tax refunds from the Internal Revenue Service (IRS). The Court rejected the argument that a stop of a vehicle for having tinted glass that violated Florida’s regulations was pretextual. The Court noted that probable cause existed for a stop, and subjective motive was irrelevant and that the driver of the vehicle consented to the search. The Court also rejected a challenge to the sufficiency of the evidence. The jury had sufficient evidence to conclude that a defendant knew the defendants knew that their business was not a legitimate tax preparation business. Turning to the sentences, the district court affirmed the imposition of a “vulnerable victim” enhancement for the use of the identities of prison inmates. The Court noted that inmates “usually do not file tax returns during periods of incarceration, and they are less likely to discover that their identities have been compromised.” The Court also rejected the challenge to the district court’s refusal to grant a minor role reduction. The Court noted that one defendant played a “vital role,” and another, though not a “leader,” had sufficient “participation” in the scheme to support the ruling. The Court also rejected a challenge to a loss amount calculation of more than $1 million but less than $2.5 million. The defendants submitted 338 fraudulent returns seeking over $2 million from the IRS. The intended loss was greater than the actual loss, but the guidelines allow a district court to rely on whichever of the two is greater.

Saint Fleur: Denial of SOS to 924(c) defendant who committed armed Hobbs Act robbery

In In Re: Marckson Saint Fleur, No. 16-12299-J (June 8, 2016), the Court denied an application for leave to file a second or successive § 2255 motion (SOS) to an inmate who invoked Johnson as a basis for challenging his § 924(c) conviction. The Court noted that the indictment expressly charged that the underlying predicate offense for the § 924(c) offense was a Hobbs Act robbery that charged Saint Fleur with committing robbery “by means of actual and threatened force, violence, and fear of injury.” Thus, this offense involved the use of force. [Martin, J., concurring, noted that she was “increasingly wary” of deciding whether a SOS would fail on the merits. Judge Martin noted the lack of briefing in cases involving pro se applicants, and the many questions that arise when an ACCA designation is based “on old convictions under state law.”]

Hines: 924(c) defendant who committed armed bank robbery denied SOS application

In In re: Charles Hines, No. 16-12454 (June 8, 2016), the Court denied leave to file a second or successive § 2255 motion (SOS) to an inmate who invoked Johnson as a basis for voiding his § 924(c) conviction. The Court recognized that it had granted an SOS in In re Pinder to an applicant who also had been convicted under § 924(c). However, Hines’ case involved the actual commission a bank robbery, an offense which has the use of force as an element. Pinder involved a conspiracy to commit Hobbs Act robbery.

Pinder: Granting SOS to 924(c) inmate

In In Re: Ricardo Pinder, Jr., No. 16-12084-J (June 1,2016), the Court granted leave to file a second or successive § 2255 motion to an inmate sentenced under 18 U.S.C. § 924(c). The Court noted that § 924(c) contained very similar language to § 924(e) – the statute at issue in Johnson, and both require higher sentences once a court decides that an offense is a “crime of violence.” Both statutes required a “categorical approach,” which assessed the “hypothetical risk posed by an abstract generic version of the offense.” The Court noted that “the law is unsettled on whether the rule announced in Johnson invalidates Pinder’s sentence.” The issue “must be decided in the first instance by the District Court.” Further, Pinder’s sentence appears to have been based on a conviction for conspiracy to commit Hobbs Act robbery, and the Eleventh Circuit has not yet decided whether this offense qualifies as a “crime of violence” under ACCA.

Griffin: Denial of Second or Successive 2255 application for career offender sentenced under mandatory guidelines

In In Re: Marvin Griffin, No. 16-12012-J (May 25, 2016), the Court denied a second or successive application for post-Johnson § 2255 relief, to an inmate sentenced pre-Booker when the Federal Sentencing Guidelines were mandatory. Citing its earlier decision in Matchett, the Court held that Johnson applied to ACCA enhancements, not to the Sentencing Guidelines – whether mandatory or advisory. The Guidelines “are directives to judges for their guidance in sentence convicted criminals [and] Due Process does not mandate notice of where, within the statutory range, the guidelines will fall.” Further, unlike an ACCA error, an error in calculating a defendant’s guidelines range does not alter the statutory sentencing range set by Congress, and would not produce a sentence that exceeds the statutory maximum. A district court could still impose the same sentence as before. Turning to Griffin’s reliance on Descamps, the Court held that “to open the successive § 2255 door, the rule must be both new and a rule of constitutional law. Descamps is a rule of statutory interpretation, not constitutional law.” Accordingly, Griffin failed to present a prima facie case under § 2266(h)(2) with regard to his career offender guideline sentence.

Thomas: Denial of Second or Successive 2255 application

In In Re: Edward Thomas, No. 16-12065-J (May 25, 2016), in a published order, the Court denied an inmate’s pro se application for leave to file a Second or Successive (SoS) Motion under 28 U.S.C. § 2255(h). The Court noted that “merely alleging a basis that meets § 2255(h)’s requirements in the abstract only ‘represent[s] the minimum showing’ necessary to file a successive § 2255 motion.” The Court noted that in In re Holladay, it had granted an application because the inmate had proffered detailed evidence that showed a “reasonable likelihood” of success on the merits. Accordingly, an inmate must do more than “simply identify Johnson as the basis for an SoS claim, but also “must show that he falls within the scope of the new substantive rule announced in Johnson.” Thomas relied on Descamps v. U.S. The Court recognized that Descamps could affect the analysis of whether a prior Florida burglary conviction qualified as a violent felony under ACCA, because it held that courts may not rely on the modified categorical approach unless a statute is divisible. But Descamps “merely interpreted an existing criminal statute,” and did not announce a new rule of constitutional law that applied retroactively, as required by § 2255(h)(2). Descamps was therefore “unavailing.” Thus, the district court’s determination that Florida burglary qualified as “generic burglary” under ACCA’s enumerated clause was not affected by Johnson. In addition, Thomas’ two convictions for armed robbery continued to qualify as ACCA predicates under the elements clause.

Frazier: One page order suffices to deny 3582(b) relief

In U.S. v. Frazier, No. 15-14640 (May 24, 2016), the Court affirmed the denial of a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). In a one-page order, the district court stated that although Frazier was eligible for a reduced sentence under Guideline Amendment 782, which amended the drug quantity guidelines, “his career offender status, post-sentence conduct in prison, additional state court conviction for murder, and his leadership role in a large-scale drug-trafficking organization counsel against this Court exercising its discretion to reduce Frazier’s sentence.” The Court held that “such an analysis is all that is required to survive our level of scrutiny . . . so long as the record demonstrates that the pertinent factors were taken into account by the district court.” The district court did not abuse its discretion by failing to address explicitly the effect of the Fair Sentencing Act of 2010, or Frazier’s positive efforts to improve his character.

Parks: Failure to give reason for non-guideline sentence subject to de novo, not plain error, review

In U.S. v. Parks, No. 15-11618 (May 20, 2016), the Court held that, for a defendant sentenced, for violations of supervised release, to 60 months’ incarceration, above the guideline range of 21-27 months, the claim that the district court failed to consider the § 3553(a) factors was reviewable only for “plain error,” but the claim that the district court failed to give a “specific reason” for the non-guideline sentence, as required by § 3553(c)(2), was reviewable de novo – even though the defendant did not raise this objection in the district court. The Court reasoned that because § 3553(c)(2) “affirmatively requires the district court to provide a specific reason for a non-guideline sentence,” a contemporaneous objection is not needed; the silent record exposes the error. A district court’s reasons must be sufficiently specific so that an appellate court can engage in meaningful review. If a court does not give reasons, the case must be remanded for resentencing. The Court therefore vacated Parks’ sentence and remanded for resentencing.

Iguaran: Parties' stipulation cannot establish subject matter jurisdiction

In U.S. v. Iguaran, No. 15-13659 (May 12, 2016), the Court, on plain error review, held that the government failed to establish subject matter jurisdiction to support its conviction for conspiring to distribute cocaine while on board a vessel subject to the jurisdiction of the United States. In his plea agreement, Iguaran agreed to plead guilty to conspiring to possess cocaine “with individuals who were on board a vessel that was subject to the jurisdiction of the United States.” The government argued that this statement, without more, constituted an admission of jurisdiction. The Court rejected this argument because parties may not stipulate jurisdiction. Parties can stipulate to facts that bear on jurisdiction, but Iguaran did not do so here. A co-defendant agreed to facts bearing on jurisdiction, for example, that no defendant when apprehended “made a claim of nationality,” but this co-defendant’s admission in another case was irrelevant to Iguara’s case. The Court therefore remanded the case, giving the government an opportunity to prove that subject matter jurisdiction exists.

Daniel: Reversing denial of ineffective claim

In Daniel v. Commissioner, Ala. Dep’t of Corrections, No. 14-12558 (May 16, 2016), the Court reversed the denial of habeas relief to an Alabama inmate sentenced to death for 2001 murders. The Court found that at the penalty phase of Daniel’s Alabama trial, counsel was ineffective in failing to conduct meaningful mitigation investigations into Daniel’s cognitive impairments, or to investigate the nature of Daniel’s prior conviction. The Court found that the Alabama Court of Criminal Appeals adjudication of these issues was contrary to or an unreasonable application of clearly established federal law. Daniel’s claim was therefore reviewable de novo. The Court remanded the case to the district court to reconsider Daniel’s discovery motion regarding his former lawyer’s records, for an evidentiary hearing, and to consider Daniel’s ineffectiveness claim de novo.

Rutgerson: Agreement to pay for sex satisfies "persuade or induce" element of 2422(b)

In U.S. v. Rutgerson, No. 14-15536 (May 12, 2016), the Court affirmed a conviction for attempting to persuade, induce, entice or coerce a minor into engaging in prostitution, in violation of 18 U.S.C. § 2422(b). After exchanging emails with a Ft. Lauderdale, Florida, police detective posing as a 15-year old named “Amberly,” Rutgerson was arrested as he arrived at a hotel at which “Amberly” had agreed to have sex in exchange for his payment of $300. The Court rejected Rutgerson’s argument that this was simply a “market transaction.” The court held that Amberly’s agreement to have sex in exchange for money sufficed to show that Rutgerson attempted to persuade or induce Amberly to engage in sex with him. The Court also rejected Rutgerson’s claim that the evidence showed that he was entrapped. The Court noted that Rutgerson “never expressed any hesitation about having sex with a minor.” The Court found no error in the district court’s refusal to give a theory of defense instruction, holding that the district court’s instruction correctly “tracked the statutory language,” and that the proposed instruction was a substantive instruction on the statute, not a theory of defense instruction. The proposed instruction was incorrect because it failed to account for the fact that Rutgerson was charged with an “attempt,” and therefore should have admitted of the possibility that he could be guilty even if had tried unsuccessfully to entice Amberly into engaging in sex. Finally, the Court agreed with Rutgerson that it was error for the district court to exclude the proffered testimony of a police detective that Rutgerson had never visited any websites dedicated to sex with minors. This evidence was relevant to rebut the government’s charge that Rutgerson was predisposed toward attempting to induce an underage prostitute to have sex with him. However, the error was harmless, because essentially the same evidence was elicited from another witness, and Rutgerson was able to emphasize this evidence during closing defense argument.

Bobby Jo Jenkins: Florida guilty plea with adjudication withheld not a prior conviction

In U.S. v. Clarke and Bobby Jo Jenkins, No. 13-15874 (May 11, 2016), the Court, overruling its prior decision in U.S. v. Orellanes, after obtaining an answer from the Florida Supreme Court to a certified question, held that a Florida guilty plea for a felony with adjudication withheld is not treated as a conviction for purposes of Fla. Stat. § 790.23(1)(a). “Florida’s highest court has plainly told us that our interpretation of Florida law . . . was wrong.” The Court therefore vacated Jenkins’s § 922(g) conviction for being a felon in possession of a firearm.

Clark: No habeas relief for inmate sentenced to death for 1990 murder

In Clark v. Fla. Attorney General, No. 14-15022 (April 27, 2016), 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 Clark received ineffective assistance of counsel in failing to present mitigating evidence. Counsel presented the same mitigating evidence earlier in a case in which the jury recommended a death sentence, and therefore had sound reason to decide against presenting the same evidence again. The Court also found that Clark did not show counsel’s failure to present mitigating evidence resulted in “prejudice.”

Miller: Explicit photos need not be "dominant" purpose to violate child pornography statute

In U.S. v. Miller, No. 15-13555 (April 27, 2016), the Court rejected a defendant’s argument that his conviction for producing child pornography should be overturned, because the jury instruction did not require proof that producing child pornography was “one of his dominant motives,” therefore leaving open the possibility that he was convicted even though the photographs were a mere incident of his consensual romantic relationship with the minor. The government was not required to prove that making explicit photographs was Miller’s sole or primary purpose. It was enough that it was a purpose. The Court also rejected Miller’s argument that his sentence should not have been enhanced based on his prior conviction, because this prior offense did not require proof that the victim was a minor. The Court held that the statute did not require that the prior conviction involve a minor in order for the 25-year mandatory minimum to apply.

Smtih: Garrity waiver is valid

In U.S. v. Smith, No. 13-15476 (April 29, 2016), the Court held that the defendant – a prison guard charged with beating an inmate to death – validly waived his Garrity rights to not be coerced into surrendering his Fifth Amendment right to silence under threat of being fired or subjected to other sanctions. With regard to most of the statements Smith gave to prison officials investigating the incident, the Court concluded that the statements were not compelled. The Court emphasized that Smith did not testify at the evidentiary hearing, thus limiting proof that he subjectively believed he would be subject to sanctions if he failed to cooperate. Turning to a written waiver of Garrity rights that Smith signed during the investigation, the Court held, as a matter of first impression, that an employee can waive his Garrity rights. The Court noted that the waiver was voluntary. It was knowing, as it informed Smith of his waiver of compelled testimony. And, “critically,” there was no violation of Garrity prior to the waiver, because none of the federal investigators had access to any statements Smith made until after he signed the waiver.

Barron-Soto: Independent source doctrine supports warrantless search

In U.S. v. Barron-Soto, No. 13-14731 (April 26, 2016), the Court held that the “independent source doctrine” made the evidence obtained from cell phones admissible, even though the phones were searched without a warrant. The Court noted that the district court’s ruling that the warrantless search was valid, under the exigent circumstances doctrine, because of the possibility of a remote wipe, was erroneous in light of the Supreme Court’s recent decision in Riley. However, the warrant affidavit did not contain any information learned from the warrantless search of the cell phones. Rather, the affidavit described the circumstances of the arrests for narcotics trafficking. This information supported probable cause for the a search warrant for the cell phones.

Norris: Movant entitled to evidentiary hearing on whether judge was actually biased against him

In Norris v. U.S., No. 15-1390 (April 25, 2016), the Court held that a § 2255 movant was entitled to an evidentiary hearing regarding whether the district judge who presided over his criminal trial, in which he was convicted of forcing women into prostitution, was actually biased against him. The Court noted that the judge (Judge Camp) was subsequently convicted of federal charges, and admitted to bipolar disorder. Further, there was evidence that he harbored racial bias against African-American men.” “Norris alleges something more than the personal biases or prejudices that are governed by the recusal statute; he identifies specific statements that Camp could not set aside his prejudice against him.”

Jimenez-Antunez: Defendant can fire retained counsel without showing "good cause"

In U.S. v. Jimenez-Antunez, No. 15-10224 (April 25, 2016), the Court held that a defendant need not show “good cause” to dismiss his retained counsel and replace him with appointed counsel. The Court found that the district court erroneously denied defense counsel’s motion to withdraw as counsel based on its finding that the defendant had been “afforded effective counsel.” This was the wrong inquiry. The Court explained that the Sixth Amendment guarantees a defendant the right to “counsel of choice,” and this includes the right to hire “and fire” retained counsel. A motion to discharge retained counsel should be granted unless denial is compelled by purposes inherent in the fair, efficient, and orderly administration of justice. The Court vacated the judgment, and remanded the case because it could not determine whether the district court would have granted the motion to withdraw had it applied the correct standard.

Warren: Guideline enhancement requires only one obliterated serial number

In U.S. v. Warren, No. 15-12519 (April 21, 2016), the Court affirmed the imposition of a four-level enhancement under U.S.S.G. § 2K2.1(b)(4)(B), for possession of a firearm that had an altered or obliterated number. When Warren was arrested the serial number on the gun’s frame was intact, while the serial number on its slide had been altered or obliterated. The Court held that the enhancement applied even when only one of two serial numbers had been altered or obliterated. The Court relied on the plain language of the Guideline, which only required that the firearm had “an” altered or obliterated serial number.

In Re Robinson: Johnson applies retroactively in the Eleventh Circuit

In In Re: Troy Robinson, No. 16-11304-D (April 21, 2016), the Court acknowledged that the Supreme Court’s recent decision in Welch v. U.S. held that Johnson v. U.S., which held that the residual clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague, applies retroactively. This overruled Eleventh Circuit precedent on this point. However, because Robinson’s prior convictions for armed robbery, and aggravated battery with a firearm, still qualified as “violent felony” predicates under the ACCA “elements” clause, Robinson’s sentence remained valid even without ACCA’s residual clause. Consequently, the Court denied Robinson’s application for leave to file a second or successive § 2255 motion. [Martin, J., concurring, listed all cases in which the Eleventh Circuit had recently denied an application for leave to file a second or successive § 2255 motion based on Johnson, in part for the sake of Federal Public Defender offices monitoring these cases.]