Llewelyn: Defendant Ineligible for 3582(c)(2) Reduction Where He Had Already Completed Term of Imprisonment

In United States v. Llewelyn, 16-10803 (Jan. 24, 2018) (Reeves (E.D. Ky.), Jill Pryor, Jordan), the Court affirmed the denial of the defendant's motion for a sentencing reduction under 18 U.S.C. 3582(c)(2).

The defendant had initially received a 110-month federal sentence in Florida.  He then received a 360-month federal sentence in North Carolina, which was to run consecutively.  He completed his Florida sentence in 2009 and began serving the North Carolina sentence.  In 2012, he filed motions to reduce his North Carolina sentence based on retroactive guideline amendments, and the federal court in North Carolina reduced his 360-month sentence to 235 months.  In 2014, following Amendment 782, he filed a pro se motion seeking a reduction of his Florida sentence.  The court denied the motion on the ground that the defendant had already completed that term of imprisonment.  The district court subsequently denied his motion for reconsideration, and he appealed 14 days later.

As an initial matter, the Court found that the defendant's notice of appeal was timely.  The government argued that the defendant's reconsideration motion was actually a motion to correct the sentence under Rule 35, and it therefore did not toll the time for appeal.  The Court rejected that argument, concluding that the court's denial of the 3582(c)(2) motion did not impose a new sentence and thus did not implicate Rule 35.  The defendant's appeal, filed within 14 days from the denial of the reconsideration motion, was therefore timely.

On the merits, however, the Court concluded that the defendant was ineligible for a sentencing reduction, because he had already completed his Florida term of imprisonment.  The Court rejected the defendant's argument that his two federal sentences were aggregated, and he was therefore only serving a single federal sentence for purposes of 3582(c)(2).  The Court rejected his reliance on: 18 U.S.C. 3584, which aggregates sentence for "administrative purposes" only; on habeas cases interpreting the "in custody" requirement; and on consecutive sentences imposed under 924(c) in a single proceeding.  The Court emphasized that the defendant was sentenced in different courts, at different times, and for different drug offenses, and thus there was no reason to aggregate the sentences for 3582(c)(2) purposes.  The Court expressly reserved whether sentences may be aggregated when a statutory mandatory consecutive sentence and a guidelines sentence are imposed in the same proceeding.

Presendieu: No Plain Error Under Rule 11 for Failing to List Elements of Offenses, but There Was Sentencing Error in the Loss Calculation and Minor-Role Reduction

In United States v. Presendieu, No. 15-14830 (Jan. 19, 2018) (Hull, Jordan, Boggs), the Court affirmed one defendant's bank-fraud and aggravated identity theft convictions, but vacated the other defendant's sentence due to two guideline miscalculations.

On appeal, the defendant argued for the first time that his guilty plea was invalid, because he was not adequately informed of the nature of the charges against him, since the court did not list and explain each element of the offenses.  Applying plain error, the Court rejected that argument, finding that neither offense was complex, the defendant was intelligent, the defendant understood the facts set forth in the factual proffer, he had discussed those facts with his attorney, and he voluntarily and intelligently pled guilty to the charges.

As for the other defendant's sentence, the Court first concluded that the district court erred in calculating her loss amount,  because, under the 2015 amendment to the relevant conduct Guideline, it improperly included conduct that was outside the scope of her "jointly undertaken criminal activity."  The Court found no evidence to support any connection between the defendant and the conduct of another individual in the larger check-cashing scheme on which the loss amount was partially based.

The Court upheld the two-level enhancement for production of counterfeit or unauthorized access devices under USSG 2B1.1(b)(11)(B)(i).   Although application of this enhancement is limited where the defendant is convicted of aggravated identity theft, the Court found that her offense involved production of false identification cards, as she provided cards to others and repeatedly referenced her source.

The Court upheld the two-level enhancement for the use of sophisticated means under USSG 2B1.1(b)(10)(C).  The defendant relied on Amendment 792, which required intentional conduct, but the Court refused to apply it to her, because it took effect after her sentencing, and it was a substantive rather than clarifying amendment.  Without the amendment, the Court found that the offense involved sophisticated means, because the defendant employed intricate measures to execute and then conceal the bank fraud.

Finally the Court found that the district court erred by denying her request for a two-level minor-role reduction under USSG 3B1.2(b).  The district court erred by relying solely on one factor--that the defendant was being held accountable only for her own actions as opposed to the broader conspiracy.  While that was a permissible factor, it was only one of many relevant factors under Amendment 794.  Moreover, the evidence was conflicting regarding her relative role, and the district court had not made factual findings in that regard.

Judge Jordan issued a concurring opinion on the plea issue.  He opined that, while the defendant had not shown plain error, there was seldom a good reason for a court not to set out the elements of an offense during the plea colloquy.  And he was skeptical that aggravated identity theft was an offense whose elements were apparent to lay people.

Brown: District Court Erred by Failing to Conduct a Re-sentencing Hearing After Granting his 2255 Motion

In United States v. Brown, Nos. 16-14267, 14284 (Jan. 18, 2018) (Martin, Marcus, Newsom), the Court held that the district court, after granting the defendant's 2255 motion based on Johnson, erred by failing to hold a re-sentencing hearing with the defendant present before it imposed the 10-year statutory maximum.  The defendant was entitled to a re-sentencing hearing with the opportunity to allocute, because the new 10-year sentence represented an unexplained upward variance from the revised guideline range, and the court did not consider the 3553(a) factors during the original sentencing proceeding but simply relied on what was then 15-year mandatory  minimum. 

More broadly, the Court reasoned that, to determine whether a defendant is entitled to a new re-sentencing hearing after a successful 2255 motion, it will ask whether the grant of post-conviction relief undermined the sentence as a whole (for example, implicating the sentencing package doctrine), and whether the sentencing court will be required to exercise significant discretion in modifying the defendant's sentence, perhaps on issues that it was not previously called on to consider at the original sentencing.  If so, then the new sentence will be a critical stage in the proceeding, requiring a hearing with the defendant present.

Watkins: Illegal Re-entry Defendant Could Not Collaterally Challenge Underlying Deportation Order Where Judicial Review was Available

In United States v. Watkins, No. 16-17371 (Jan. 5, 2018) (Wilson, Rosenbaum, Titus) (per curiam), the Court affirmed the defendant's illegal re-entry conviction.

The defendant argued that she could not be charged with illegal re-entry, because her underlying deportation order was invalid on the ground that it was based on a grand theft conviction that no longer qualified as a crime of moral turpitude.  The Court rejected that argument on the ground that the defendant failed to meet the requirements for collaterally challenging an underlying deportation order.  Specifically, the Court found that the deportation proceedings did not deprive her of the opportunity for judicial review, because she could have sought to reopen her immigration proceeding.  And, although the legal basis of her collateral challenge did not arise until after the 90-day deadline to do so, equitable tolling applies to the 90-day deadline, the defendant sought equitable tolling in order to reopen her proceeding, and the BIA determined that equitable tolling was not appropriate in her case.  The defendant, moreover, did not seek judicial review of that denial.

The Court also found no reversible error during the defendant's bench trial.  It found no abuse of discretion in permitting the government to collect the defendant's fingerprints used to establish her identity.  And, while the district court "likely erred" in admitting the fingerprint analyst's expert testimony under Daubert as unreliable -- for failing to testify about her scientific methods -- that error was harmless, because an officer testified about the defendant's identity, and the defendant herself repeatedly admitted that she had previously been deported.

Morales-Alonso: Georgia Aggravated Assault is a Crime of Violence Under the Enumerated Offense Clause of the Guidelines

In United States v. Morales-Alonso, No. 16-14925 (Jan. 5, 2018) (Julie Carnes, Edmondson, Kathy Williams), the Court held that Georgia aggravated assault qualified as a "crime of violence" under the enumerated offense clause, which is contained in the commentary to U.S.S.G. 2L1.2 and enumerates "aggravated assault."

The Court determined that Georgia aggravated assault roughly corresponded to the generic version of aggravated assault, which the Court had previously defined in Palomino-Garcia as a criminal assault accompanied by either an intent to cause serious bodily injury or the use of a deadly weapon.  The Court initially found that Georgia's aggravated assault statute was divisible, and, using Shepard documents, determined that the defendant was convicted of aggravated assault by using a deadly weapon or other object/device/instrument that is likely to or actually does result in serious bodily injury when used offensively.  Although aggravated assault with a deadly weapon was generic, the defendant argued that the Georgia offense was overbroad because it could be committed with an object, device, or instrument.  The Court rejected that argument because the Georgia courts had made clear that the object/device/instrument must be used as a deadly weapon.  That sufficed because the deadly weapon, as used in the generic offense, could be dangerous due to the way in which it was used in a particular case.  Finally, the Court rejected the defendant's argument that Georgia's statute could be violated by the use of an object/device/instrumentality that just happened to cause serious bodily injury, such as a golfer accidentally hitting someone with his ball.  The Court found that such conduct would not violate the statute, and the defendant's hypothetical was not supported by any case law and represented "legal imagination" rather than a "realistic possibility."

Foster: Rejecting Sufficiency, Loss Calculation, and Juror Misconduct Challenges to Uphold Wire Fraud Convictions and Sentence

In United States v. Foster, No. 15-14084 (Jan. 4, 2018) (Gilman, Jordan, Hull), the Court upheld the defendant's wire-fraud convictions and sentence.

First, the Court found sufficient evidence to support the convictions.  It found sufficient evidence that the defendant misrepresented the ownership of the land at the heart of the real-estate investment fraud, misrepresented purported news articles regarding the defendant's investment company, misrepresented that celebrities had purchased land through his company, and had the requisite criminal intent.

Second, the Court concluded that the district court correctly determined the loss amount for purposes of both his guideline range and restitution.  The Court rejected the defendant's argument that the value of the land should have been subtracted from the $8 million total loss figure because, even if the investors acquired a proprietary interest in the land, it was worthless as a practical matter, since they did not and likely could not obtain title to it.  The Court also refused to credit the value of the land on the ground that a fraudster is not entitled to an offset for value provided solely to conceal or perpetrate a fraud.

Third, the Court concluded that the defendant's sentence was procedurally and substantively reasonable. Aside from the sufficiency of the evidence and loss calculation, the defendant raised no additional procedural challenges.  And the Court found the 152-month sentence--imposed in the middle of the guideline range--to be substantively reasonable.

Finally, the Court found no error in the denial of the defendant's motion to vacate the verdict for juror misconduct in light of a post-trial letter, in which a juror stated that she had been bullied into the verdict and regretted her decision.  The defendant argued that he should have been permitted to question the juror under Rule 606(b)'s exception for extraneous prejudicial information improperly brought to the juror's attention.  The Court rejected that argument, reasoning that the juror's letter, referencing bullying and sway tactics during deliberations, pertained to purely internal (not extraneous) matters.  The Court further noted that the juror's letter described nothing more than typical features of juror deliberations.

Crabtree: No Double Jeopardy Violation in Medicare Conspiracy Where Defendants Acquitted at First Trial of Making False Statements

In United States v. Crabtree, No. 15-15146 (Jan. 3, 2018) (Wilson, Rosenbaum, Robreno), the Court upheld Medicare card fraud convictions and sentences.

First, the Court rejected the defendants' double jeopardy argument based on their acquittal at a first trial of making false statements.  The Court concluded that, because the false statement charges were limited to six particular therapy notes, the jury's acquittal on those charges did not necessarily include a finding that the defendants were not part of the broader conspiracy.  Double jeopardy therefore did not preclude the government from re-trying the defendants on the health care conspiracy charge (which resulted in a mistrial at the first trial).

Second, the Court found that overwhelming evidence existed to show that the defendants knew of object of the conspiracy and voluntarily joined it, given their numerous continuous acts in furtherance of the conspiracy over a number of years.

Third, the Court found no abuse of discretion in permitting the admission of testimony regarding Medicare coverage determinations, since it was relevant to the government's theory of motive, and the court issued a limiting instruction.  The Court no found abuse of discretion in permitting trial testimony about illegal kickbacks, since it was relevant one of the defendant's knowledge and involvement in the conspiracy.  And the Court found that, while it may have been error to have permitted expert testimony that one of the defendants may have violated a different law, any error was harmless given a limiting instruction and overwhelming evidence against the defendant.

Fourth, the Court found no abuse of discretion in the district court's dismissal and replacement of a juror who was repeatedly tardy.

Fifth, as to jury instructions, the Court found that any error giving the deliberate ignorance instruction was harmless because the court also instructed the jury on actual knowledge, and the jury could have convicted on such a theory.  The Court also rejected a defendant's challenge to an aiding and abetting instruction, as that instruction was not given in connection with the conspiracy charge.

Finally, the Court upheld two sentencing enhancements as to one of the defendants.  The Court found that a four-level enhancement for being an organizer/leader was warranted because he was the manager of the business, directed certain actions by his subordinates, authorized them to use his signature, and profited greatly from the conspiracy.  The Court also found that the vulnerable-victim enhancement was appropriate because the company served elderly patients with acute mental illness, and the defendant failed to properly treat them by signing whatever documents were put in front of him without regard to their medical needs.