In United States v. Hernandez, et al., No. 15-10810 (July 28, 2017) (Rogers (6th Cir.), Hull, Marcus), the Court upheld the defendants' drug-trafficking convictions under the MDLEA.
The primary issue on appeal was whether the vessel was subject to the jurisdiction of the United States as a vessel without nationality. The Court concluded that it was because the Coast Guard's certification that Guatemala neither confirmed nor denied its registration was conclusive proof satisfying the jurisdictional requirement. The Court found that the defendants could not look behind or challenge that certification, even where, as here, it turned out that the vessel was in fact registered in Guatemala, and the defendants claimed that the Coast Guard possessed information that would have easily led it to reach that conclusion. The Court, in a lengthy discussion, reached that conclusion as a matter of both statutory construction and international law. The Coast Guard's certification is conclusive proof, even if inaccurate or the product of bad faith, because the statute delegates such matters to the diplomatic branches. Relatedly, the Court rejected the argument that, by the time Guatemala neither confirmed nor denied registration (making the vessel subject to US jurisdiction), the defendants were no longer committing the drug offense.
The Court also rejected several additional arguments by the defendants. It found the evidence sufficient to support the convictions. It found no reversible prosecutorial misconduct because, even though some remarks made during closing did "not reflect the high standards to which the Government should hold itself," they were not sufficiently prejudicial. The Court found that the accidental destruction of the vessel and other items did not violate Brady or Arizona v. Youngblood. The Court briefly rejected various hearsay-related arguments. And the Court upheld sentencing enhancements for both acting as a captain, where the defendant identified himself as such and held a captain's license, and for recklessly creating a substantial risk of death, where the defendant engaged in aggressive maneuvering of the vessel.
Friday, July 28, 2017
Little: Constructive Possession of a CP Email Where Stored on the Server
In United States v. Little, No. 16-10664 (July 28, 2017) (Ed Carnes, William Pryor, Dubina), the Court affirmed a conviction and sentence for possessing and transporting child pornography.
As for the conviction, the defendant argued that venue was improper in Florida for his possession conviction, because he received an email with child pornography attached while he was in Texas and did not open that email while he was in Florida. The Court rejected that argument for two reasons. First, the Court found that the defendant unquestionably possessed a different email containing child pornography while in Florida, since he sent that email to someone else. Even though that email was also the subject of the transportation count, that did not violate double jeopardy because possession and transportation have different elements. Second, and in any event, the Court found that the defendant had constructive possession of the Texas email while he was in Florida, because he had the power to retrieve that email from the server, and he expressed an intention to do so by discussing trading child pornography. Applying plain error, the Court also upheld the denial of a motion to sever the possession and transportation counts, emphasizing that they involved the same time-frame, same email account, and similar subject matter.
As for the sentence, the Court found that the district court did not err in applying the five-level enhancement for distributing child pornography with the expectation to receive a thing of value, pursuant to U.S.S.G. 2B2.2(b)(3)(B). The Court found no clear error in finding that the evidence reflected an expectation of receiving child pornography, which was a thing of value. The Court also upheld the two-level enhancement for using a computer in connection with the charged offense, pursuant to U.S.S.G. 2B2.2(b)(6). The Court found that applying the enhancement did not result in impermissible double-counting, because his base-offense level did not fully account for his use of a computer. Agreeing with five other circuits, the Court reasoned that, because not all transportation cases necessarily do require the use of a computer, that use was not fully reflected in the base-offense level for that count.
As for the conviction, the defendant argued that venue was improper in Florida for his possession conviction, because he received an email with child pornography attached while he was in Texas and did not open that email while he was in Florida. The Court rejected that argument for two reasons. First, the Court found that the defendant unquestionably possessed a different email containing child pornography while in Florida, since he sent that email to someone else. Even though that email was also the subject of the transportation count, that did not violate double jeopardy because possession and transportation have different elements. Second, and in any event, the Court found that the defendant had constructive possession of the Texas email while he was in Florida, because he had the power to retrieve that email from the server, and he expressed an intention to do so by discussing trading child pornography. Applying plain error, the Court also upheld the denial of a motion to sever the possession and transportation counts, emphasizing that they involved the same time-frame, same email account, and similar subject matter.
As for the sentence, the Court found that the district court did not err in applying the five-level enhancement for distributing child pornography with the expectation to receive a thing of value, pursuant to U.S.S.G. 2B2.2(b)(3)(B). The Court found no clear error in finding that the evidence reflected an expectation of receiving child pornography, which was a thing of value. The Court also upheld the two-level enhancement for using a computer in connection with the charged offense, pursuant to U.S.S.G. 2B2.2(b)(6). The Court found that applying the enhancement did not result in impermissible double-counting, because his base-offense level did not fully account for his use of a computer. Agreeing with five other circuits, the Court reasoned that, because not all transportation cases necessarily do require the use of a computer, that use was not fully reflected in the base-offense level for that count.
Thursday, July 27, 2017
Martin: Florida Fleeing and Eluding is a "Crime of Violence" Under Guidelines' Former Residual Clause
In United States v. Martin, No. 16-11627 (July 27, 2017) (Ed Carnes, Tjoflat, William Pryor) (per curiam), the Court held that the defendant's Florida conviction for fleeing and eluding was a "crime of violence" under U.S.S.G. 2K2.1(a)(4)(A). The Court relied on prior precedent holding that this offense qualified under the residual clause of the Armed Career Criminal Act, and the residual clause in U.S.S.G. 4B1.2 (and incorporated into 2K2.1) had the same meaning. It therefore qualified under that clause. The Court recognized that, although Johnson had declared the ACCA's residual clause void for vagueness, Beckles held that the residual clause in 4B1.2(a)(2) was not unconstitutionally vague. Finally, the Court noted that the Sentencing Commission had deleted the residual clause in 4B1.2, but that amendment had not taken effect at the time of the defendant's sentencing. And the Court declined to apply that amendment retroactively because it was substantive, not clarifying, since it eliminated an entire class of offenses from the "crime of violence" definition.
Gill: Firearm Possession under 2K2.1 "Unlawful" if Prohibited by State Law
In United States v. Gill, No. 16-11306 (Ed Carnes, William Pryor, Dubina) (per curiam), the Court held that, for purposes of U.S.S.G. 2K2.1(b)(1), the "unlawful" possession of a firearm includes possession that is unlawful under state law. The defendant argued that, because the firearm in question was manufactured in Florida and did not move in interstate or foreign commerce, it was not unlawful under federal law and therefore should not count for purposes of 2K2.1. The Court rejected that argument, finding that the firearm was nonetheless unlawful under Florida's felon-in-possession statute, and that was sufficient for the Guideline. Although the government did not make that argument below, the Court was free to affirm on that alternative ground, because all of the relevant facts were contained in the PSI, those facts were not disputed, and the Court could take judicial notice of the Florida statute. Finally, the Court found that the facts demonstrated the defendant's possession of the firearm because there was joint custody of the safe in which it was found, and that safe contained other items admittedly belonging to the defendant.
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.
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.
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.
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.
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.
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.
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