Conage: ACCA Case Certifying Question about "Purchasing" Trafficking Quantity to Florida Supreme Court

 In United States v. Conage, No. 17-13975 (Sept. 30, 2020) (Julie Carnes, Ed Carnes, Clevenger), the Court certified a question to the Florida Supreme Court about the Florida trafficking statute in 893.135.

 The question was whether cocaine trafficking under 893.135(1)(b)1 is a “serious drug offense” under the ACCA.  That Florida statute is indivisible, and it prohibits “purchasing” a trafficking quantity of drugs.  To satisfy the ACCA’s definition of a “serious drug offense,” the offense must “involve” certain acts, one of which is possession with intent to distribute.  Thus, the question was whether purchasing a trafficking quantity under 893.15 “involves” actual or constructive “possession” of the drug being purchased.  If not, then the statute is categorically overbroad, and it will never qualify as an ACCA predicate.  However, because Florida law did not specify the elements of trafficking by purchase, and did not otherwise define the term “purchase,” the Court certified that issue to the Florida Supreme Court.

Bolatete: Upholding Conviction for Possessing Unregistered Silencer Over Constitutional Challenges

 In United States v. Bolatete, No. 18-14184 (Sept. 29, 2020) (Ed Carnes, Branch, Luck), the Court affirmed the defendant’s conviction and sentence for possessing an unregistered silencer.

 First, the Court held that the National Firearms Act was constitutional under Congress’ taxing power.  It explained the binding circuit precedent foreclosed the defendant’s contrary arguments.

 Second, applying plain error review, the Court rejected the defendant’s argument that the Act imposes an unconstitutional tax because it imposes impermissible fees on the exercise of Second Amendment rights.  There was no decision addressing that argument, so any error was not plain.  For the same reason, the Court also found no plain error as to the defendant’s argument that the Act’s application to silencers violates the Second Amendment.

 Third, the Court found that there was sufficient evidence to support the jury’s finding that he was not entrapped.  Although the defendant initially told the undercover officer that he did not want a silencer, there were others facts that showed a predisposition to receive and possess an unregistered silencer.

 Fourth, as to sentencing, the Court found that any guideline error was harmless because the court said it would impose the same 60-month sentence anyway, and that upward variance was not substantively unreasonable. 

Boyd: Enforcing Sentence Appeal Waiver Where Defendant Challenged Calculation of Guidelines

 In United States v. Boyd, No. 18-11063 (Sept. 16, 2020) (Branch, Marcus, Huck), the Court granted the government’s motion to dismiss the appeal based on a sentence appeal waiver.

 The appeal waiver barred the defendant from appealing his sentence unless the court imposed a sentence “that exceeds the advisory guideline range.”  Although the court imposed a guideline sentence, the defendant argued that the waiver did not bar his argument challenging the calculation of the guideline range.  Rejecting the defendant’s argument that the waiver was ambiguous, the Court held that the “advisory guideline range” clearly referred to the range calculated by the district court.  The Court also found that, based on the record, the defendant knowingly and voluntarily agreed to the waiver.