Bobal: Supervised Release Condition Banning Computer Use for Life Not Plainly Unconstitutional After Packingham

In United States v. Bobal, 19-10678 (Nov. 30, 2020) (William Pryor, Hull, Marcus), the Court affirmed the defendant’s enticement conviction and lifetime supervised release condition prohibiting him from using a computer.

As for the conviction, the Court held that the district court did not abuse its discretion by denying a motion for a mistrial based on the prosecutor’s comments at closing.  The comments were not improper and did not substantially affect the verdict.

As for the supervised release condition, and applying plain error, the Court found that the lifetime computer restriction was not plainly unconstitutional in light of Packingham.  The Court found that Packingham was distinguishable because it applied to those who completed their sentences, it applied even to sex offenders who did not use a computer to commit the offense, and the restriction here contained an exception for work.  The Court joined three other circuits who have found no plain error in a similar restriction, and it rejected a Third Circuit opinion that ruled that blanket computer restrictions would rarely be permissible after Packingham.

Trader: No Reasonable Expectation of Privacy in Email/IP Addresses Post-Carpenter

In United States v. Trader, No. 17-15611 (Nov. 25, 2020) (William Pryor, Hull, Marcus), the Court affirmed the defendant’s enticement conviction and life sentence.

First, the Court held that the Supreme Court’s decision in Carpenter did not establish a reasonable expectation of privacy in email addresses or IP addresses.  The Court held that the third-party doctrine applied because the defendant affirmatively and voluntarily conveyed that information when he downloaded and used an app.  The Court rejected the defendant’s argument that email and IP addresses are akin to cell phone or location records, as neither directly records an individual’s location and is only incidentally associated with cell phones.

Second, the Court held that, based on the totality of the circumstances, the warrant application established probable cause to believe that the defendant’s home contained evidence of a crime.

Third, the Court held that the life sentence was not substantively unreasonable.  The Court rejected the defendant’s argument that the district court gave too much weight to the guidelines and too little weight to his redeeming qualities.

Shah: No Proof of Motive Required for Conviction to Accept Healthcare Kickbacks

In United States v. Shah, No. 19-12319 (William Pryor, Hull, Marcus), the Court affirmed the defendant’s conviction for receiving healthcare kickback payments.

The parties ultimately agreed that the statue requires no proof of the defendant’s  motivation for accepting the kickbacks, so long as he accepts it knowingly and willfully.  The Court agreed, though it distinguished the case of a payee (no motive required) from that of a payor (motive required).  Although the jury instruction in this case was erroneous, the Court found that the error was harmless because, if anything, the instruction harmed the government by requiring the government to prove more than what was required, and the district court properly instructed the jury on willfulness.

Delgado: Upholding Drug and Silencer Convictions

In United States v. Delgado, No. 19-11997 (Nov. 23, 2020) (Baker (S.D. Ga.), Newsom, Branch), the Court affirmed the defendant’s drug and silencer convictions.

First, the Court concluded that a search warrant was supported by probable cause to believe that there would be drugs in the defendant’s home.  Authorities intercepted packages from overseas that were addressed to the defendant at his residence; it didn’t matter that the packages were not actually delivered.  And, in any event, the good faith exception applied.

Second, the district court did not clearly err by considering as relevant conduct another package that was addressed to the defendant, even though it was the subject of a count that was dismissed.  The Court found it unnecessary to determine whether the Supreme Court’s decision in McFadden applied to relevant conduct for sentencing purposes because the government proved by a preponderance of circumstantial evidence that the defendant knew the package contained a controlled substance.

Finally, the district court did not clearly err by imposing an enhancement in USSG 2D1.1(b)(1) for possessing a firearm in connection with a drug offense.  There were numerous firearms and silencers found at the home with the drugs, and the defendant could not meet his burden to establish that their connection was improbable.

Gonzalez: Upholding Denial of Coram Nobis as Untimely Due to Tactical Delay

In Gonzalez v. United States, No. 19-11182 (William Pryor, Hull, Marcus) (Nov. 20, 2020), the Court affirmed the denial of a petition for coram nobis as untimely.

The petitioner sought relief after removal proceedings were commenced, arguing that he received ineffective assistance of counsel about the immigration consequences of his criminal conviction from over a decade earlier.  Reviewing for clear error, the Court upheld the district court’s determination that the petitioner failed to provide sound reasons for delay.  The Court found it fatal that the petitioner’s counsel made a tactical decision to delay because he did not believe that petitioner would actually be removed under the immigration policy then in effect.

Johnson: No Plain Error in Refusing to Move for Third Acceptance Point Due to Pre-Plea Obstruction

In United States v. Johnson, No. 17-15259 (Nov. 19, 2020) (Julie Carnes, Marcus, Kelly (CA10)), the Court affirmed the defendant’s sentence.

First, the Court found no clear error in holding the defendant accountable for more than 400 grams of marijuana for purposes of USSG 2D1.1.  To the extent the district court relied on hearsay about the weight of marijuana per shipment, that hearsay was sufficiently reliable.

Second, the Court found no clear error in applying an obstruction enhancement where the defendant used discovery from the case to threaten potential witnesses.  The Court rejected his argument that the enhancement applied only to conduct attempting to hinder an investigation.  And it did not matter that the threats were not communicated directly to the witnesses.

Third, the Court found no clear error in applying an enhancement because he committed the offense as part of a pattern of criminal conduct engaged in as a livelihood.  The defendant made more money from the drug operation than he did from any legitimate employment, and he earned more than minimum wage.  The Court rejected the defendant’s argument that the livelihood enhancement did not apply whenever the defendant had some legitimate employment.

Fourth, the district court did not plainly error by sua sponte denying the defendant a third point off for acceptance of responsibility.  The government failed to move for the third point because the defendant obstructed justice before making his guilty plea.  The Court engaged in a lengthy discussion of the case law about when the government may refuse to move for a third point—whether it may be withheld only where the acceptance is untimely, or whether it may also be withheld where the defendant engages in conduct inconsistent with USSG 3E1.1.  Although it was clear that the government cannot withhold due to a defendant’s refusal to waive his appellate rights, little else was clear in this Circuit, and there was no consensus in other circuits.  Accordingly, the defendant could not show plain error.

Finally, the Court found that the defendant’s low-end 151-month sentence was not substantively unreasonable.  The Court rejected the defendant’s unwarranted disparity argument, finding that his co-defendants were not similarly situated. 

Senter: Vacating Denial of 2255 For Failure To Address Johnson/ACCA Claim

In Senter v. United States, No. 18-11627 (Nov. 13, 2020) (Baker (S.D. Ga.), Newsom, Branch), the Court vacated the denial of a 2255 motion based on Johnson.

In his 2255 motion, the movant argued that his 1988 Alabama attempted robbery offense was a non-existent offense under state law, and it therefore did not satisfy the ACCA’s elements clause because it did not have any elements at all.  The district court, however, mischaracterized that claim as a collateral attack on the validity of the state conviction.  Because the district court failed to address the movant’s ACCA/Johnson claim, the Eleventh Circuit vacated and remanded for the district court to do so in the first instance.

Judge Branch dissented, opining that the district court adequately addressed the movant’s claim.