Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, July 19, 2017

Burke: State Sentence Imposed After Initial Federal Sentence but Before Federal Re-sentencing is "Prior Sentence"

In United States v. Burke, No. 16-16458 (July 19, 2017) (William Pryor, Ed Carnes, Dubina), the Court held that the term "prior sentence" under U.S.S.G. 4A1.1(a) includes a state sentence imposed after the defendant's initial federal sentence but before the district court vacated that sentence and re-sentenced him.

In 2010, Burke was sentenced as an armed career criminal.  In 2011, a Florida state court sentenced him on a variety of offenses.  In 2016, the district court granted Burke's 2255 motion based on Johnson, vacated the initial sentence, and conducted a full re-sentencing.  At that re-sentencing, the court treated the 2011 Florida sentences as "prior sentences" for purposes of calculating his criminal history.  The court of appeals held that this was correct because, when a district court vacates a sentence, that sentence becomes void in its entirety.  "[V]acatur in our Circuit wipes the slate clean," and re-sentencing is de novo.  Therefore, the 2011 sentences became "prior sentences" when he was re-sentenced in 2016.  In so holding, the Court joined the Eighth and Ninth Circuits and rejected a contrary decision from the First Circuit.  It also rejected Burke's reliance on the rule of lenity, finding the text of the Guideline clear, but also doubting that the rule of lenity applies to the advisory Guidelines at all.

The Court also rejected Burke's argument that his 1999 Florida armed robbery conviction was not a crime of violence under U.S.S.G. 2K2.1, because that argument was foreclosed by binding precedent in Fritts and Lockley.

Monday, July 17, 2017

Lange: Florida Aiding and Abetting Attempted Manufacture is "Controlled Substantce Offense"

In United States v. Lange, No. 16-15164 (July 17, 2017) (William Pryor, Ed Carnes, Moore), the Court held that the Florida offense of being a principal to the attempted manufacture of a controlled substance qualified as a "controlled substance offense" under U.S.S.G. 4B1.2(b).

In so holding, the Court relied heavily on the commentary to the Guidelines.  Although the commentary listed aiding and abetting, attempting, and conspiring to prohibit manufacture, the Court found that this list of inchoate crimes was inclusive, not exclusive.  Applying general rules of statutory construction, and declining to read the Guidelines narrowly, the Court found that the commentary also encompassed principal liability for aiding and abetting attempted manufacture.  Like the enumerated inchoate crimes, this crime also sought to prohibit manufacture.  To support its conclusion, the Court also relied on Florida's principal liability law and the federal law of aiding and abetting under 18 U.S.C. 2.

Applying plain error, the Court also rejected the defendant's argument that the government engaged in sentencing factor manipulation by encouraging five separate criminal transactions during a sting operation instead of arresting him after the first transaction.  The Court noted that the government must engage in "extraordinary  misconduct" in order to engage in sentencing factor manipulation, and the Court had never previously reduced a sentence on that basis.  The Court found no error, let alone plain error, because nothing required officers to make an arrest after the first transaction in a sting operation.

Friday, July 14, 2017

Wright: Non-Descript PII not an "Access Device" and Traffic Citation Not an "Arrest"

In United States v. Wright, No. 15-14833 (July 14, 2017) (Hull, Marcus, Rogers), the Court addressed a variety of Guidelines issues, ultimately vacating the sentence and remanding for further proceedings.

First, for purposes of the fraud loss Guideline and identity-theft statute, the Court held that debit/credit cards and social security numbers qualified as an "access device."  The Court, however, held that "personal identifying information" -- without any evidence about what that information contained -- was not an access device.  Because the district court's loss calculation turned on that issue, and there were no factual findings regarding the PII, the Court remanded for further proceedings.

Second, the Court affirmed the denial of a two-level minor-role reduction under De Varon, finding that the defendant possessed and transmitted lots of PII.  Although she claimed that she feared for her safety, her refusal to identify any other members of the conspiracy meant that she failed to meet her burden to establish that she had a lesser role.

Third, the Court affirmed the denial of a reduction for acceptance of responsibility because, although the defendant had cooperated and pled guilty, she was convicted for misdemeanor marijuana possession during pretrial release, finding that evidence of continued, but unrelated, criminal conduct after an arrest supports the denial.

Fourth, the Court held that a diversionary disposition resulting from a nolo plea qualified for criminal history points, even though adjudication was withheld.  The Court also held that a traffic citation did not constitute an intervening "arrest" for purposes of 4A1.2(c), a question that had divided two circuits.

Monday, July 10, 2017

Louis: Drug-Trafficking Convictions Reversed for Insufficient Evidence

In United States v. Louis, No. 16-11349 (July 10, 2017) (Wilson, Tjoflat, Robreno), the Court reversed a defendant's drug-trafficking convictions for insufficient evidence.

The Court emphasized that, in order to find the defendant guilty of conspiracy to posses cocaine with intent to distribute, and possession of cocaine with intent to distribute, the government was respectively required to prove beyond a reasonable doubt that the defendant knew the object of the conspiracy and that he was in possession of cocaine.  The Court found that, while there was sufficient evidence that the defendant knew that the boxes in question contained contraband that was illegal under some law, there was insufficient evidence to establish his knowledge that the boxes contained drugs.  The government relied heavily on the defendant's presence and flight, but the Court found this evidence, without more, to be insufficient.  The Court also rejected the government's reliance on an entrustment theory because, despite the large quantity of drugs, the defendant was present with the drugs only briefly and was never left alone with them.

Melton: Promise to File 5K or Rule 35 Motion is Not a Promise to File a 3553(e) Motion

In United States v. Melton, et al. Nos. 15-15738, 15-15743 (July 10, 2017) (Ed Carnes, Rosenbaum, Higginbotham), the Court reversed orders granting defendants relief under 18 U.S.C. 3582(c)(2) to sentences below the statutory minimum based on 18 U.S.C. 3553(e).

Generally, a defendant sentenced to the statutory minimum is not entitled to a reduction under 3582(c)(2).  The district court went below the statutory minimum here by effectively forcing the government to file a 18 U.S.C. 3553(e) motion, believing that this was necessary in order to give the defendants the benefit of their plea agreement.  The Court reversed because, although the plea agreement contemplated the government filing a 5K1.1  or Rule 35 motion (and the government did in fact file a 5K motion at the original sentencing), the agreement said nothing at all about a 3553(e) motion.  And the Court refused to imply such a promise into the agreement, distinguishing between 3553(e), 5K, and Rule 35.  Because the plea agreement did not include such a 3553(e) promise, the Court concluded that the district court lacked authority to re-write the agreement and go below the statutory minimum when granting 3582(c)(2) relief.  The Court declined to address whether the government is permitted to file a 3553(e) motion in a 3582(c)(2) proceeding in order to give the defendant the benefit of his bargain.


Friday, June 30, 2017

Ovalles: Johnson Does not Invalidate Residual Clause in 924(c)(3)(B)

In Ovalles v. United States, No. 17-10172 (Hull, William Pryor, Tjoflat), the Court -- without holding oral argument -- held that Johnson does not invalidate the residual clause in 18 U.S.C. 924(c)(3)(B), and that attempted carjacking satisfies the elements clause in 18 U.S.C. 924(c)(3)(A).

As for the residual clause, the Court agreed with three circuits and found that 924(c)(3)(B) was materially different, both textually and functionally, from the ACCA's residual clause.  The Court found the Seventh Circuit's contrary decision in Cardena unpersuasive.  Notably, the Court did not mention Dimaya, still pending in the Supreme Court, but on page 21 it did seek to distinguish the analysis under 16(b) as being less precise and predictable than the analysis under 924(c)(3)(B).

As for the elements clause, the Court observed that it had already held in the SOS context, in In re Smith, that carjacking qualified.  Assuming that attempted carjacking by "threat and violence" clearly qualified, the Court focused on the intimidation prong, finding that "[p]roscribed criminal conduct where the defendant must take the car by intimidation and act with intent to kill or cause serious bodily injury is unmistakably a crime of violence also."  For support, the Court notably cited two federal bank robbery cases, Kelly and In re Sams.  Applying categorical approach, the Court concluded that it could conceive of no "plausible" (as distinguished from "theoretical") ways to commit attempted carjacking without either the attempted or threatened use of force.

Wednesday, June 28, 2017

Spivey: Police Deception Does Not Vitiate Voluntariness of Consent

In United States v. Spivey, No. 15-15023 (June 28, 2017) (William Pryor, Martin, Boggs), the Court held that the use of deception by law enforcement officers did not vitiate the voluntariness of a defendant's consent to the warrantless entry and search of her home.

The majority said that, while deception can be relevant to voluntariness, it would not necessarily or always render consent involuntary; rather, it was just one factor to consider.  At the same time, the court also said that the subjective motivation of the officers, including their use of a pretext or even a deliberate lie, was not relevant to voluntariness, since the inquiry focused on the defendant's state of mind.  In this case, the defendant had reported prior burglaries of her home.  The burglar was arrested and informed the authorities that the home contained a credit card manufacturing plant.  Two federal fraud-task force officers then went to the home on the pretext of following up on the burglary when in fact their real purpose was to investigate the credit card fraud.  They informed her that they were there to investigate the burglaries, and they misrepresented the identity of one of the officers -- a Secret Service Agent who falsely posed as a crime-scene technician and pretended to dust the house for fingerprints.  The majority found that the defendant essentially invited the officers to her home by reporting the burglaries and made the strategic decision/gamble to assume the risk of the officers discovering contraband.

Judge Martin wrote a lengthy dissent, arguing that the consent was not voluntary under the circumstances of this case.  She concluded this way: "The Majority opinion tells police that what happened here is not a problem.  In effect, it teaches police they don't need to get a warrant so long as they can pre-plan a convincing enough ruse.  This is true even if, as here, that ruse includes skirting the limits of the officer's legal authority to investigate only certain crimes.  In doing so, I fear the Majority opinion undermines the public's trust in the police as an institution together with the central protections of the Fourth Amendment.  When I read the record in Ms. Austin's case, I don't believe this is the 'reasonable' conduct our Founders had in mind when drafting the Fourth Amendment."

Tuesday, June 13, 2017

Alberts: Minor-on-Minor Conduct Can Trigger 2G2.2(b)(5) Enhancement for Pattern of Sexual Abuse

In United States v. Alberts, No. 16-11065 (June 13, 2017) (Martin, Jill Pryor, Anderson), the Court affirmed a 120-month sentence for receiving and possessing child pornography.

The defendant unsuccessfully made two arguments on appeal.  First, he argued that the district court erroneously applied the enhancement in 2G2.2(b)(5) for engaging in a pattern of activity involving sexual abuse.  The defendant did not dispute the PSI facts, where he admitted to engaging in sexual activity with minor relatives, and that admission, coupled with corroborating indicators of his interest in pedophilia and incest, was sufficient to support the enhancement.  The defendant argued that, because the sexual activity occurred more than 30 years ago, it was too attenuated, but he acknowledged that this argument was foreclosed by binding circuit precedent.  And the Court rejected the defendant's argument that the enhancement does not apply to sexual activity committed by the defendant when he himself was a minor.  Joining other circuits, the Court reasoned that the application notes to 2G2.2(b)(5) referred to several statutory provisions that prohibited minor-on-minor conduct, and nothing in the Guideline was to the contrary.  The Court cautioned, however, that only conduct falling within one the statutory provisions can support an enhancement, but the defendant did not dispute that his conduct qualified as "sexual acts" within the meaning of one of those statutes.

Second, the defendant argued that his sentence was procedurally and substantively unreasonable.  As to the former, the Court, applying plain error, found that, although the district court did plainly err under Tapia by considering the need for rehabilitation at sentencing, that error did not affect the defendant's substantial rights because rehabilitation was merely an ancillary concern at sentencing.  As to the latter, the Court found that the 120-month sentence, which fell below the properly calculated guideline range, was not substantively unreasonable.

Wednesday, May 31, 2017

In re Hernandez: Denial of a Second SOS Application Based on Baptiste

In In re Hernandez, No. 17-11989 (May 31, 2017) (per curiam), the Court denied an application for leave to file a second or successive 2255 motion based on Johnson.  He argued that his 924(c) convictions based on Hobbs Act robbery/extortion and carjacking were invalid because those predicates no longer qualified as crimes of violence.  Mr. Hernandez had previously filed a similar application based on Johnson, which the Eleventh Circuit had denied on the ground that his Hobbs Act convictions qualified as crime of violence under the elements clause in 924(c)(3)(A).  Under the Eleventh Circuit's precedent in In re Baptiste, that earlier denial precluded his instant application.  The Court further added that Mathis did not announce a new rule of constitutional law and therefore did not provide an independent basis for his application.

Judge Martin, joined by Judge Jill Pryor, concurred in the result in a 13-page opinion.  In the concurrence, she: reiterated her disagreement with Baptiste, but recognized that it remained binding precedent; explained that it was not clear that, under the categorical approach, Hobbs Act extortion satisfies the elements clause; attempted Hobbs Act extortion is even less likely to satisfy the elements clause; and the practice of stacking 924(c) convictions, which was "prolific" in the Southern District of Florida, can lead to particularly harsh and unjust sentences.  She closed by lamenting the Court's inability to revisit the original panel ruling and thereby permit Mr. Hernandez to have the district court determine whether his sentence is illegal.

Friday, May 26, 2017

Jockisch: Jury Unanimity Not Required for Underlying State Offense in Attempted Enticement Prosecution

In United States v. Jockisch, No. 14-13577 (May 26, 2017) (Julie Carnes, Jordan, Robreno), the defendant was charged under 18 U.S.C. 2422(b) with attempting to persuade a 15-year old minor to engage in sexual activity that, if consummated, would have violated Alabama law.  The indictment listed three Alabama statutes that the defendant could have been charged with had that sexual activity occurred: second-degree rape, second degree sodomy, and second degree sexual abuse.  The Court rejected the defendant's argument that the jury was required to unanimously agree as to which Alabama offense the sexual activity would have violated.  Finding these to be means rather than elements of the offense, and distinguishing the Supreme Court's decision in Richardson, the Court held that the jury need unanimously agree only that the sexual activity being enticed would have violated at least one of the listed Alabama statutes had it been carried out.  Alternatively, the Court held that the jurors were necessarily unanimous that the defendant could have been charged with second degree sexual abuse.

Judge Jordan concurred in the judgment, disagreeing with the majority's analysis.  Agreeing with a contrary decision from the Seventh Circuit, he would have required the jury to unanimously agree on the underlying state offense.  He concurred because he believed that the error in this case was harmless.

Doyle: Prejudice Presumed for Allocution Errors Notwithstanding Low-End Sentence

In United States v. Doyle, No. 14-12181 (May 25, 2017) (Ed Carnes, Jill Pryor, Ripple), the Court addressed whether the presumption of prejudice governing allocution errors applies where the defendant is sentenced at the low-end of the advisory guideline range.  The Court held that it does.

There is a general presumption of prejudice for purposes of the third plain-error prong where a defendant is not afforded the opportunity to allocute at sentencing.  In pre-Booker cases, however, the Court had carved out an exception where the defendant received a sentence at the low end of the then-mandatory guideline range.  The reason: there was virtually no possibility that the defendant could have received a lower sentence.

In Doyle, the Court held that this exception to the presumption of prejudice did not apply to post-Booker advisory cases.  Even if the defendant is sentenced at the low end of the guideline range, there is a still a possibility that he could receive a lower sentence by virtue of a downward variance (provided he is not sentenced at the statutory minimum).  Accordingly, even though Doyle received a sentence at the low end of the guideline range, and he failed to object to the court's failure to afford him the opportunity to allocute, there was a presumption of prejudice (and the other plain-error prongs were satisfied).  The Court therefore vacated the sentence, remanding for the limited purpose of allocution and for the court to consider any post-sentencing rehabilitation in its discretion.

Tuesday, May 02, 2017

Shalhoub: Denial of fugitive challenge not immediately appealable

In U.S. v. Shalhoub, No. 16-10533 (April 28, 2017), the Court held that the denial of a motion for special appearance of counsel to seek the dismissal of an indictment on the ground that the defendant is a fugitive is not an immediately appealable collateral order. The Court noted that the only orders that are immediately appealable are those where the right would be destroyed if it were not vindicated before trial. The Court found that Shalhoub’s motion was not asserting “a right not to be tried,” the usual prerequisite for an immediately appealable order.” The Court also rejected Shalhoub’s request for a writ of mandamus to order the district court to rule on his motion for dismissal of the indictment. “That [Shalhoub] does not want to submit himself to the jurisdiction of the federal courts does not make the legal remedies available to challenge his indictment inadequate.”

Doran: FSU organization did not receive federal funds

In U.S. v. Doran, No. 16-10927 (April 26, 2017), the Court reversed a conviction for embezzlement in violation of 18 U.S.C. § 666, holding that the organization that was the victim of Doran’s scheme, the non-profit Student Investment Fund established by Florida State University for educational purposes, was not a recipient of federal funds, and § 666 therefore was not violated. The Court found that the non-profit organization was not an “alter ego” of FSU. [Jill Pryor, J., concurring, would have held that the government failed to put on sufficient specific proof that FSU received over $10,000 in federal funds, and that § 666 therefore was not violated].

Monday, May 01, 2017

Collins: bank gratuity offense is "offense against property"

In U.S. v. Collins, No. 15-12805 (April 26, 2017), the Court held that for restitution purposes, a defendant guilty of conspiracy to accept gratuities with the intend to influence a bank transaction has committed an “offense against property,” and is therefore subject to mandatory restitution –here, in the amount of $251,860.31. The Court stated that restitution does not apply to offenses “with only incidental property loss.” The Court held that it would not apply a “categorical approach” to determine whether an offense qualified as one “against property,” but would focus on the conduct underlying the offense of conviction. Here, Collins “sought to derive an unlawful benefit from the property at play in the bank transactions she corruptly facilitated.” Her offense therefore qualified as one “against property.”

Hastie: Personal information includes email address

In U.S. v. Hastie, No. 15-14481 (April 25, 2017), the Court held that the term “personal information” in 18 U.S.C. § 2721, which prohibits the disclosure of personal information obtained by a state department of motor vehicles, includes email addresses. The Court noted the “similarity” between email addresses and the non-exhaustive list of examples of personal information in the statute, which includes an individual’s photograph, driver identification number and address. [Jordan, J., dissenting, argued that whether an email address qualifies as “personal information” was a factual question that should have been left for the jury to decide].

Thursday, April 27, 2017

Roy: Counsel's absence from courtroom is not structural error

In U.S. v. Roy, No. 12-15093 (April 26, 2017), the Court (en banc) (8-3) in a 281-page opinion held that harmless error, not structural error, applied to determine whether defense counsel’s absence from the courtroom during the questioning of a prosecution witness at trial was reversible error. The Court recognized that in Cronic, the Supreme Court held that structural error occurs when a criminal defendant has been denied the assistance of counsel at a critical stage of the trial. But defense counsel “was present during 99.6 percent of Roy’s trial, and he vigorously represented Roy.” The Court reasoned that the 18 questions and answers that Roy’s counsel missed were not a “stage” or “critical stage” of a trial, because they did not constitute a separate step in the trial process, or a discrete phase of it. The Court also noted that it was able to make a prejudice analysis because it knew the precise questions and answers that defense counsel missed out on. The Court concluded that the error caused by counsel’s absence was harmless as to the single attempted child enticement charge, noting that in addition to the six images of child pornography mentioned during counsel’s absence, “the jury was presented with overwhelming and irrefutable evidence of Roy’s sexual interest in minor girls.” As to the counts of possession of child pornography, the evidence was also “overwhelming.”

Friday, April 21, 2017

Davis: Prosecution for witness tampering not multiplicitous

In U.S. v. Davis, No. 15-13241 (April 20, 2017), the Court affirmed the convictions of a defendant charged with being a felon in possession of a firearm, and with witness tampering and obstruction of justice in violation of 18 U.S.C. §§ 1512(b)(1) & 1503. The Court rejected Davis’ argument that the witness tampering and obstruction charges were multiplicitous because Congress did not intend for cumulative prosecution under §§ 1512 and 1503. The Court acknowledged that the Second Circuit had held that Congress intended for witness tampering to be prosecuted only under § 1512, but noted that the majority of circuits disagreed with the Second Circuit. The Court also noted that a prosecution under § 1503 involves interference with the due administration of justice, while a violation of § 1512 does not require a “pending judicial proceeding.” The Court rejected Davis’ argument that a prosecution under § 1512 for witness tampering involves an “implicit requirement” of a pending judicial proceeding, holding that so long as two offenses involve different elements, a court need look no further in determining that the prosecution of both offenses does not offend Double Jeopardy.

Friday, April 14, 2017

Gonzalez-Murillo: Remand for 3582 resentencing

In U.S. v. Gonzalez-Murillo, No. 16-11464 (April 4, 2017), the Court held that when it was unclear whether, at the original sentencing, the district court, under USSG § 5G1.3(b)(1), gave the defendant credit for 13 months he served in state custody for a term of incarceration that was undischarged at the time of the federal sentencing, the Court remanded for resentencing pursuant to a subsequently amended Guideline, pursuant to 18 U.S.C. § 3582(c)(2). The Court recognized that if the state custody was discharged, then any sentence reduction would have a discretionary departure, not subject to further reduction under § 3582(c)(2). But because the prior sentence might have not have been based on a departure, the Court remanded for resentencing.

Monzo: Affirming rejection of minor role reduction

In U.S. v. Monzo, No. 16-10222 (April 7, 2017), the Court rejected the argument that the district court erroneously failed to grant the defendant drug courier a “minor role” sentence reduction. The Court found that the district court did no erect any per se role for couriers in drug cases. The Court also rejected the argument that the district court erred in assigning three criminal history points for a prior Nevada drug-possession conviction, finding that Monzo was arrested on a probation violation, his probation was revoked, and he was sentenced to 12-30 months imprisonment. This 30-month sentence exceeded 13 months, the length of sentence sufficient to trigger three criminal history points.

Osman: Restitution for child pornography

In U.S. v. Osman, No. 14-14124 (April 12, 2017), the Court rejected a child pornography defendant’s challenge to a restitution order covering future therapy: “We are not dealing here with just the likelihood that a young child whose pornographic images are shared online will suffer residual effects from the reproduction of those images will need treatment. We are dealing with a child who was molested by her father, who will be informed of that fact, who will know that her father is absent from her life and suffering imprisonment based on that interaction. That is a heavy burden to place on a child. We cannot imagine that therapy will not be in order at the relevant times. Given the facts here, it seems that the need for future therapy is not just likely, but a virtual certainty.”

Pridgeon: Fla. Stat. 893.13 qualifies as controlled substance offense

In U.S. v. Pridgeon, No. 15-15739 (April 12, 2017), the Court affirmed the career offender sentence for a defendant convicted of methamphetamine trafficking. The Court rejected the argument that a Florida drug trafficking violation of Fla. Stat. § 893.13 fails to qualify as a “controlled substance offense” because the offense lacks the requisite mens rea with respect to the illicit nature of the substance. The Court pointed out that this argument was foreclosed by prior Circuit precedent.

Horner: Affirming tax fraud convictions

In U.S. v. Horner, No. 15-14675 (April 13, 2017), the Court rejected challenges to convictions for filing false tax returns. The Court rejected the argument that the government presented false testimony from an IRS agent. The testimony “was neither false nor misleading.” The Court also rejected the argument that the district court erroneously failed to give the jury the “good faith reliance” instruction that had been given in another case, pointing out that that this was not the “only acceptable instruction on good faith reliance.” The Court also rejected the argument that the district court erred in failing to instruct the jury on the “due diligence” obligations of tax preparers. The Court also rejected the argument that the district court erred in allowing the government to characterize the Horners’ cash deposits as “structuring.” “The evidence was highly probative in addressing the issue of the Horners’ financial savvy.” Finally, the Court rejected the argument that it was unfair to admit the defendants’ 2005 and 2006 tax returns. The Court found that these acts, though in earlier years, were part of the same set of actions through which the jury found the defendants committed tax fraud in 2007 and 2008.

Tuesday, March 28, 2017

Bergman: No withdrawal from conspiracy

In U.S. v. Bergman, No. 14-14990 (March 24, 2017), the Court rejected the argument that the defendant withdrew from the health care fraud more than five years before the indictment, and that the prosecution was therefore barred by the five-year statute of limitations. The Court concluded that the jury could reasonably have found that Bergman resigned his position at the firm that was committing fraud only under threat of being fired, and that this resignation therefore did not constitute the kind of affirmative step to disavow or defeat the conspiracy required for withdrawal. The Court rejected Bergman’s substantive unreasonableness challenge to his 180-month sentence. The Court pointed out that Bergman “played a key role” in perpetuating a scheme that fraudulently billed Medicare of nearly $200 million. The Court rejected a co-defendant’s claim that a “vulnerable victim” enhancement should not have been imposed based on patients who were also co-conspirators. The Court explained that some of the patients, including some who suffered from dementia, were not co-conspirators. [Martin, J., dissented from the statute of limitations holding, concluding that Bergman’s resignation qualified as a withdrawal from the conspiracy].

Thursday, March 16, 2017

McCullough: reassignment of judge permissible after guilty plea

In U.S. v. McCullough, No. 15-15430 (March 15, 2017), the Court held that Fed. R. Crim. P. 25(b)(1), which bar reassigning a case to a new judge after a guilty verdict unless the judge who presided “at trial” is absent or disabled does not bar reassignment after a guilty plea. The Court noted that guilty pleas are governed not by Rule 25, but by Rule 11. The decision to separate Rules 25 and 11 suggests that Rule 25 does not apply to defendants who plead guilty. The Court also rejected the argument that the sentencing judge was too unfamiliar with the record. Turning to the Fourth Amendment suppression issue, the Court held that a traffic stop based on the police’s determination that certain portions of a vehicle’s Alabama licence plate were not clearly visible, in violation of a provision of the Alabama Code. This provided an objectively reasonable basis for the traffic stop. The Court also rejected the argument that the officer’s interpretation of the traffic code was inconsistent with the decision of an Alabama appellate court. Finally, the Court found that McCullough waived his argument in a supplemental authority letter that he was not a career offender, by failing to make this argument in his opening brief.

Friday, March 10, 2017

Butts: rejecting ineffective assistance of counsel claim

In Butts v. GDCP Warden, No. 15-15691 (March 9, 2017), the Court affirmed the denial of habeas relief to a Georgia death row inmate, rejecting his claim that counsel was ineffective for failing to develop mitigating evidence during the sentencing phase of his trial. The Court found that the defense team “thoroughly” investigated mitigating evidence. The Court declined to second guess trial counsel’s strategic decision to focus on residual doubt instead of mitigation evidence.

Tuesday, February 28, 2017

Hughes: Rule 11(c) defendant not eligible for sentence reduction

In U.S. v. Hughes, No. 15-15246 (Feb. 27, 2017), the Court held that a defendant who pled guilty under a Rule 11(c)(1)(C) plea, which binds the district court to impose the sentence recommended by the parties, was not subsequently eligible for a sentence reduction based on an Amendment to the Sentencing Guidelines and 18 U.S.C. § 3582(c)(2). The Court noted that the Supreme Court addressed this issue in Freeman (2011), a “plurality” decision in which Justice Sotomayor’s concurrence provided the “less-far-reaching” ground, and therefore represented Freeman’s holding. The Court noted the Circuit split on the holding in Freeman, and sided with the majority view. Under this view, a Rule 11(c) defendant is only eligible for a § 3582(c)(2) sentence reduction if the sentencing judge’s decision to accept the recommended sentence is based on the guidelines (not, as the plurality reasoned, because every sentence is based on the guidelines). Here, Hughes’ plea agreement did not make clear that a sentencing range formed the basis for his sentence. Therefore, Hughes was not sentenced “based on” the guidelines range, and he is not eligible for a sentence modification.

Phillips: Granting 2255 relief where false statement by police officer tainted conviction

In Phillips v. U.S., No. 14-11960 (Feb. 23, 2017), the Court, reversing the denial of § 2255 relief, agreed with the defendant (and the government’s concession) that a prior conviction for drug trafficking was tainted by the false testimony at trial of a West Palm Beach police officer, who was also under criminal investigation for conduct that occurred at the time of his investigation of the defendant. The Court concluded that the officer’s false testimony was “material” to the government’s case, and thus there was “grave doubt” about whether it influenced the jury’s verdict. The Court, however, affirmed the district court’s ruling on two other counts that despite the warrant application’s reliance on false statements by the police officer, there was other information in the warrant that supported probable cause. There was sufficient evidence, apart from the false testimony, to justify the search warrant that led police to the discovery of ammunition in Phillips’ residence.

Tuesday, February 21, 2017

Vargas: Duration of traffic stop not unreasonable

In U.S. v. Vargas, No. 16-14714 (Feb. 16, 2017), the Court affirmed the denial of a motion to suppress evidence on Fourth Amendment grounds, rejecting the argument that the police detained the defendant for an unreasonable time after a traffic stop. The Court pointed out that neither the driver nor the passenger of the vehicle that had been pulled over for a traffic infraction had a driver’s license. The police therefore had a duty to continue to detain them, and prevent them from driving off.

Tuesday, February 14, 2017

Votrobek: Georgia and Florida conspiracies were separate

In U.S. v. Votrobek, No. 14-12790 (Feb. 13, 2017), the Court affirmed the convictions and sentences of defendants convicted of conspiring to distribute drugs and money laundering. The Court rejected the argument that Double Jeopardy barred prosecution for a Georgia conspiracy on the ground that it was the same conspiracy for which a defendant was acquitted after a jury trial in Florida. The Court concluded that the defendant committed two separate conspiracies, noting that the conspiracies did not overlap in time, and involved different co-conspirators. Though the offenses were almost identical, this factor is least important to the Double Jeopardy analysis. Moreover, the overt acts were different – and the conspiracies took place in two separate States: Florida and Georgia. The Court also rejected a challenged failure to hold a Franks hearing to determine whether the probable cause affidavit supporting a warrant lacked a basis. The Court cited the information detailed in the affidavit, and found that it supported the need for a wiretap. The Court further rejected the argument that the district court should have given an “entrapment by estoppel” defense jury instruction. Entrapment by estoppel occurs when a defendant reasonably relies on an official’s approval of the conduct at issue. Here, at no point did an official communicate to a defendant that his conduct was in compliance with the law.

Wednesday, February 01, 2017

Scheels: Enhancement for sadistic conduct

In U.S. v. Scheels, No. 15-15405 (Jan. 31, 2017), the Court rejected the argument that the four level enhancement of U.S.S.G. § 2G2.1(b)(4) for an offense involving material that portrays sadistic or masochistic conduct should not apply when the sadistic or masochistic conduct in the pornography was directed at the defendant, not at the child victim. The Court pointed out that the Guideline covered conduct that “involved” sadistic or masochistic conduct, not that the conduct be directed at the victim. The Court noted past cases involving conduct directed at the victim, but found that these cases merely hold that conduct directed toward a child is sufficient to warrant the enhancement, not that it is necessary. The Court affirmed the 600-month sentence.

Wednesday, January 25, 2017

Golden: Turner remains binding precedent

In United States v. Golden, No. 15-15624 (Jan. 24, 2017), the Court held that it was bound by its precedent in Turner v. Warden Coleman FCI to hold that a Florida conviction for aggravated assault, in violation of Fla. Stat. § 784.021, constitutes a crime of violence for Guideline enhancement purposes. [Jill Pryor, J, concurring, urged the Court to reconsider the viability of Turner en banc. She argued that Turner conflicts with other Circuit precedent, and with the analytical approach of subsequent Supreme Court cases.

Wednesday, January 18, 2017

Stein: Signalife investor loss amount vacated

In United States v. Stein, No. 14-15621 (Jan. 18, 2017), the Court affirmed all fraud convictions arising out of a scheme to inflate the stock price of Signalife, but vacated his conviction and remanded for resentencing. The Court rejected Stein’s Brady claim, finding that the evidence at issue was exculpatory, and was available to him with reasonable diligence. The Court also rejected Stein’s Giglio claim, finding that the prosecution did not speak falsely, and its statements did not involve testimony that would have materially affected the judgment. Turning to the sentence, the Court noted that the district court calculated the loss amount based on a finding that all 2, 415 shareholders who owned shares of stock of the company whose value Stein inflated suffered a loss during the period the stock was artificially inflated. The Court noted that there was no direct evidence, and insufficient circumstantial evidence, that 2,415 investors relied on the fraudulent information Stein disseminated. The Court noted that on remand, the district court could try again to prove the losses of the Signalife investors, or rely on the defendant’s actual gain, instead of the actual loss, as a measure of the loss for Guideline purposes. The Court also agreed with Stein that, in calculating loss, the district court erroneously failed to account for “intervening events” that may have affected the stock price, specifically, the short-selling of over 22 million shares of Signalife and the across-the-board decline of the market in 2008. The Court instructed the district court to determine whether these intervening events affected the price of Signalife, and, if so, whether Stein reasonably foresaw this.

Thursday, January 12, 2017

Garcia-Martinez: Florida Second Degree Burglary is not a Violent Felony

In U.S. v. Garcia-Martinez, No. 14-15725 (Jan. 11, 2017), the Court held that a prior conviction for second-degree burglary of a dwelling in violation of Fla. Stat. § 810.02(3) does not count as a violent felong for purposes of USSG 2L1.2(b)(1)(A)(ii). Noting a Circuit conflict on the meaning of a “dwelling,” and siding with the majority view, the Court held that a generic dwelling is a space intended for use as “a human habitation.” Florida, however, includes the “curtilage” of a space within its definition of a “dwelling.” This takes Florida’s definition outside the generic definition. Further, the dwelling and the curtilage are not alternative elements of a burglary, just different means of committing the offense. Thus, the locational element is indivisible. The Court therefore vacated the sentence and remanded for resentencing.