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.

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.

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].

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].