Harris: Affirming Denial of Compassionate Release

In United States v. Harris, No. 20-12023 (Feb. 26, 2021) (Jordan, Grant, Ed Carnes), the Court affirmed the denial of defendant's motion for compassionate release under 18 U.S.C. 3582(c)(1)(A).  

As an initial matter, the Court sua sponte addressed its jurisdiction to hear the case.  It held, for the first time, that 3582(c)(1)(A)'s exhaustion requirement is not jurisdictional, and is instead a non-jurisdictional claim-processing rule.

Addressing the merits of the appeal, the Court first noted that because the statute speaks permissively and says the district court "may" reduce a defendant's sentence, the district court's decision is discretionary and subject to review only for abuse of discretion. 

The Court accepted, without deciding, that medical conditions can rise to being "extraordinary and compelling" reasons warranting a sentencing reduction, and concluded that the medical conditions presented here were not.  Of the conditions presented, only hypertension appears on the CDC's list of conditions, and it appears only as one that means an adult with it "might be at an increased risk" of severe illness from COVID-19.  As a result, the Court concluded that the district court did not abuse it discretion in deciding that defendant's medical conditions were not "extraordinary and compelling" reasons to grant compassionate release.  

The Court also concluded that the district court's independent consideration of the 3553(a) factors and 1B1.13 n.1 further supported its holding that the district court did not abuse its discretion in denying defendant's motion.  

The Court noted in a footnote that it was not reaching the issue of whether a district court is required to consider 1B1.13 n.1.       

Abovyan: Affirming Convictions Relating to Healthcare Fraud and Dispensing a Controlled Substance

In United States v. Abovyan, No. 19-10676 (Feb. 22, 2021) (William Pryor, Hull, Marcus), the Court affirmed defendant's convictions and sentences for conspiring to commit healthcare fraud, conspiring to possess with intent to dispense controlled substances, and seven counts of unlawfully dispensing a controlled substance.  

The alleged healthcare fraud scheme here involved substance abuse treatment centers, whose patients often consisted of individuals from sober homes and halfway houses.  Defendant, a physician, was hired on as the medical director of these treatment centers. 

Defendant first challenged the sufficiency of the evidence supporting his conviction for conspiracy to commit healthcare fraud.  He accepted that a healthcare fraud conspiracy existed, but that the government's evidence was insufficient to prove his knowledge of, and participation in, it.  At most, he argued, the government only showed negligent medical practices on his part, and not willful participation in a criminal conspiracy.  The Court rejected this argument, reiterating that for a defendant to be found guilty of conspiracy, the evidence need only demonstrate that he was aware of the conspiracy's essential nature, not that he knew all of its details, nor that he was a major player, nor that he had direct contact with other alleged co-conspirators.  Additionally, the government's evidence may be circumstantial.  Here, the Court found that the government introduced ample evidence to support the defendant's conviction, though said evidence was largely circumstantial.  

Second, Defendant challenged the sufficiency of the evidence as to the Controlled Substances Act counts.  These counts related to defendant's prescribing of buprenorphine, a Schedule III narcotic that requires a special license and X Number issued by the DEA when being prescribed for addiction treatment.  No special license or X Number is needed when prescribing buprenorphine for other things, like pain.  Here, Defendant argued that the government failed to prove his buprenorphine prescriptions were not for a legitimate medical purpose or were outside the scope of professional practice.  The Court disagreed.  It found that while prescribing buprenorphine without an X Number was not a per se violation of the Act, defendant prescribed it to patients for pain/withdrawal when those patients were not experiencing pain/withdrawal, and he provided no medical addiction treatment with the prescription so that his prescriptions did not serve a legitimate medical purpose. 

Third, defendant challenged, for the first time, the district court's failure to instruct the jury on the elements of substantive healthcare fraud, which was the object of the healthcare fraud conspiracy charged in Count One.  The Court rejected this argument, reasoning that an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or unreliable.  While such an error has been found to be plain in other cases, it was not so here because the court's instruction referred to the superseding indictment, which itself incorporated the statutory elements of healthcare fraud into the conspiracy charge.  Additionally, any omission did not affect the defendant's substantial rights since his theory of defense acknowledged that there was a healthcare fraud scheme.  

Fourth, defendant argued that, as to the Controlled Substances Act offenses, the court abused its discretion by declining to give his requested instruction on the difference between criminal and civil liability.  The Court found no abuse of discretion because defendant's proposed instruction was not a correct statement of the law.  

Fifth, Defendant challenged the court's instructions as they related to the X Number.  He argued that the instruction given created strict Section 841(a) liability for the violation of Section 823(g), which contains the licensing requirement for an X Number.  The Court disagreed, and found the instruction to be a correct statement of the law. 

Sixth, with regard to sentencing, defendant argued that the district court erred in calculating his advisory guidelines range based on intended loss, instead of actual loss.  He argued doing so was erroneous because his codefendants' sentences were based on actual loss, thereby creating an unwarranted sentencing disparity by using the higher intended loss when calculating his guidelines range.  The Court found no error, since U.S.S.G. 2B1.1 suggests using the greater of actual or intended loss.  Additionally, the Court found no unwarranted sentencing disparities because codefendants cooperated and pleaded; they were not similarly situated to defendant.  

Seventh, defendant argued that the district court erred in determining the amount of the intended loss because it was not supported by a preponderance of the evidence.  He argued that the court failed to make underlying findings as to the scope of the criminal activity that defendant agreed to undertake and the reasonable foreseeability of the loss amount attributed to him.  The Court rejected this argument as waived.  And, in any event, though the district court did not make individualized findings when determining reasonable foreseeability, an appellate court may affirm if the record otherwise supports the court's determination.  The record did so here.  

Finally, defendant argued that his Count Two sentence exceeded the statutory maximum penalty.  Count Two alleged that defendant conspired to distribute controlled substances spanning Schedules II, III, and IV, each of which carries a different statutory maximum penalty.  The jury reached a general verdict for Count Two and did not specify which substance was involved.  Defendant argued that therefore, he should have received the most lenient statutory maximum penalty.  Because defendant did not raise this issue before the district court, the Court reviewed for plain error.  The Court found the error to be plain, but found that it did not affect defendant's substantial rights.         

Maradiaga: Affirming Conviction for Use of Fraudulent Immigration Document

In United States v. Maradiaga, No. 19-11889 (Feb. 12, 2021) (Wilson, Lagoa, Hull), the Court affirmed defendant's conviction for use of a fraudulent immigration document, in violation of 18 U.S.C. § 1546(a).    

Defendant used an order of supervision from the Department of Homeland Security to obtain a Florida driver's license.  He was charged with one count of knowingly possessing and using a document prescribed by statute and regulation as evidence of authorized stay in the United States, specifically, an ICE order of supervision, which he knew to be forged, counterfeited, altered, and falsely made.  He proceeded to trial and was found guilty.  On appeal, he argued the following: (1) his conviction must be vacated because he was charged with and convicted of conduct that does not constitute a crime within the meaning of § 1546(a); (2) the district court's jury instruction on the elements of § 1546(a) offense constructively amended the indictment; and (3) comments by the government during closing arguments misled the jury and improperly bolstered a government witness.

As to the first issue, the Court relied upon its prior decision in United States v. Chinchilla, No. 19-10987 (11th Cir. Feb. 11, 2021), in finding that orders of supervision fall within the scope of § 1546(a).  

As to the second issue, the Court found that any error was invited because defendant proposed the very jury instruction he was challenging on appeal, and failed to object to the instruction at trial.  Additionally, were the Court to review the error, any review would be for plain error, and defendant could not show any prejudice.

As to the third issue, while the Court agreed that some of the government's statements in closing were misleading, defendant's challenge failed because he could not show prejudice.     

Chinchilla: Order of Supervision Falls Under Ambit of 18 U.S.C. § 1546(a)

In United States v. Chinchilla, No. 19-10987 (Feb. 11, 2021) (Wilson, Lagoa, Hull), the Court reversed the district court's order dismissing the superseding indictment and remanded for further proceedings. 

Defendant was charged with violating 18 U.S.C. § 1546(a) for allegedly using a fraudulent order of supervision to obtain a driver's license.  Section 1546(a) criminalizes the knowing use, attempt to use or possession of a forged, counterfeited, altered, fraudulently procured, or unlawfully obtained document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States.  An order of supervision authorizes an unlawful immigrant to be released from custody into the community and to remain living in the United States for an indefinite period of time pending removal.  Such an order may authorize an immigrant to seek employment in the United States, and various federal regulations identify orders of supervision as evidence of lawful presence in the United States for purposes of receiving Social Security and federal health care benefits.  The State of Florida also accepts from applicants seeking to obtain a Florida driver's license an order of supervision as proof of legal presence in the United States.      

Defendant moved to dismiss the superseding indictment for failing to state an offense, arguing that the term "authorized stay" means "lawful presence" in the United States and that no federal statute or regulation expressly identifies an order of supervision as "evidence of authorized stay in the United States."  The district court dismissed the superseding indictment after concluding that an order of supervision does not qualify as a document "prescribed by statute or regulation . . . as evidence of authorized stay . . . in the United States" as required by § 1546(a).

In reversing the district court, the Court considered the plain and ordinary meaning of the statutory language as it was understood at the time the law was enacted, and concluded that the phrase "prescribed by statute or regulation . . . as evidence of authorized stay . . . in the United States" refers to a  document directed by a statute or regulation as proof that its recipient has formal approval to temporarily remain in the United States.  The Court held orders of supervision to be just such a document, and therefore reversed and remanded.         

Isaac: Affirming 80-year Sentence for Producing and Possessing Child Pornography

In United States v. Isaac, No. 19-11239 (Feb. 5, 2021) (Branch, Luck, Ed Carnes), the Court affirmed defendant's convictions and 80-year sentence for producing and possessing child pornography.  

Defendant was charged with two counts of producing child pornography and one count of possessing child pornography.  He moved to suppress the evidence found on one of his cellphones, which was found in his car after he had been arrested.  Defendant argued that the warrant authorizing the search of his phone was invalid because the search of his car was an illegal search incident to arrest.  Defendant also challenged the district court's application of a two-level enhancement under U.S.S.G. 2G2.1(b)(5) because the victim was a minor in the defendant's custody, care of supervisory control; a five-level increase under U.S.S.G. 4B1.5(b)(1) for engaging in a pattern of activity involving prohibited sexual conduct; and an enhancement under U.S.S.G. 2G2.2(b)(5) for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor.  Finally, defendant challenged his sentence as substantively unreasonable.   

 As to the suppression issue, the Court affirmed the district court's denial of defendant's motion to suppress the evidence from his cellphone because the cellphone was recovered pursuant to a valid inventory search.  Here, the car was impounded and searched in line with the police department's standard operating procedures ("SOP").  Per the SOP, officers may impound a car if all reasonable efforts to provide the vehicle driver with alternatives to impoundment have been unsuccessful or impractical due to time or staffing constraints, and must search and inventory a car that has been impounded.  The Court did not find any clear error in the district court's factual determinations as to this issue.

As to the custody, care, or supervisory control enhancement, the Court interpreted its application as broadly inclusive, and defined "care" to mean simply that a person is responsible for looking after the child's wellbeing, even if just temporarily.  It reasoned that because the commentary list of those who would qualify for the enhancement is nonexhaustive and the enhancement is to be applied broadly, the operative language must include defendants whose actual roles in the care of children are comparable to one or more of the commentary's examples.  The Court's reasoning is in line with reasoning from the First, Fifth, and Eighth Circuits.  Under this construction, the minor victim was under the defendant's care because defendant was no different than a temporary caretaker.       

As to the pattern of behavior enhancements, the Court found that the two separate occasions of sexual abuse established a "pattern."  

Finally, the Court found the sentence substantively reasonable because the district court carefully considered the 3553(a) factors, weighed them without making a clear error of judgment, and provided sufficient justification for the sentence imposed.  That the defendant won't live to see the end of his 80-year sentence does not establish that the sentence is unreasonable.  

         

Armstrong: Grant of Sentence Reduction Not a New and Intervening Judgment for Purposes of AEDPA's Bar on SOS Petitions

In Armstrong v. United States, No. 18-13041 (Feb. 5, 2021) (Wilson, Lagoa, Anderson), the Court held that  a sentence reduction under 18 U.S.C. Section 3582(c) does not constitute a new, intervening judgment for purposes of the bar on second or successive section 2255 motions under the AEDPA.  

Here, movant filed his first section 2255 motion in June 2014.  While that motion was pending, the district court sua sponte reduced movant's sentence based on Amendment 782 to the Sentencing Guidelines.  Following that reduction, the district court denied movant's section 2255 motion.  Movant then filed a second section 2255 motion in 2018, challenging his new sentence.  The district court denied this second section 2255 motion as unauthorized. 

The Court held that movant was required to get permission prior to filing his second section 2255 motion because it was second or successive.  It reasoned that because a sentence modification does not constitute a de novo resentencing, it does not constitute a new judgment, and therefore does not reset the count for purposes of AEDPA's bar on second or successive section 2255 motions.         

Morales: Upholding Search Under Good Faith Exception

In United States v. Morales, No. 19-11934 (Feb. 5, 2021) (Jordan, Marcus, Ginsburg), the Court upheld a search conducted pursuant to a warrant based upon the good faith exception to the exclusionary rule.

Law enforcement applied for and received a search warrant for defendant's home on the basis of contraband recovered after two trash pulls conducted three days apart.  Defendant moved to suppress the evidence recovered during the search of his home, arguing that law enforcement's affidavit in support of a search warrant did not establish probable cause because it did not explain the reasons for the trash pulls, reported only minimal amounts of marijuana, and made no mention of items linking the trash to the defendant's residence.  Defendant also argued that the affidavit deliberately or recklessly contained false information because not all the evidence described in the affidavit appeared in the photographs submitted with the affidavit, and the affidavit improperly omitted the fact that defendant's house abutted an open lot where marijuana use was common.   

The Court specifically avoided resolving the issue of whether trash pull evidence alone can support a finding of probable cause.  The Court held that even assuming the affidavit did not establish probable cause, law enforcement officers relied on the warrant in good faith, so defendant was not entitled to suppression.  Here, officers did everything they should have--obtained and relied on a warrant from a neutral magistrate and did not mislead the magistrate--so suppression would do nothing to deter future police misconduct.  No exceptions to the good faith rule applied, and law enforcement's reliance on the warrant was objectively reasonable.  In conducting its analysis of whether law enforcement's reliance on the warrant was objectively reasonable, the Court considered an unobjected-to fact from the PSI that trash pulls were conducted after law enforcement received an anonymous tip that defendant was selling narcotics from his home.     

The Court also denied defendant's challenge to the search warrant on staleness grounds.  The defendant argued that because the trash pulls were two weeks old by the time the warrant issued, the evidence was stale.  Reviewing for plain error, and finding no 11th Circuit or Supreme Court precedent holding that marijuana evidence found in two trash pulls conducted three days apart becomes stale after two weeks, the Court rejected the argument.

Judge Jordan concurred in part, and concurred in the judgment.  He joined the Court's opinion as to all but Part II.B.  He would not have considered the anonymous tip because it was not in the affidavit submitted to obtain the search warrant, the government did not disclose the tip in arguing the good-faith exception in the district court, neither the magistrate judge nor the district court relied on the tip in ruling on the suppression motion, and the existence of the tip only became known when the probation office prepared the PSI.  He reasoned that because the government bears the burden of establishing good faith, and it failed to bring the tip to the attention of the court below, it should not now benefit from its failure.            

Cannon: Upholding Convictions for Conspiracy to Commit Hobbs Act Robbery, Conspiracy to Possess with Intent to Distribute Cocaine, Using and Carrying a Firearm During a COV and Drug Trafficking Crime, and Felon-in-Possession

In United States v. Cannon, No. 16-16194 (Feb. 3, 2021) (William Pryor, Hull, Marcus), the Court affirmed defendants' convictions for conspiracy to commit Hobbs Act robbery, conspiracy to possess with intent to distribute cocaine, using and carrying a firearm during a crime of violence and a drug trafficking crime, and possession of a firearm by convicted felons.  All charges stemmed from a reverse stash house sting.

First, as to defendants' selective prosecution claim, the Court reiterated the "demanding" burden defendants must carry when seeking to establish a claim of selective prosecution in violation of the Constitution, and held that statistical data reflecting the treatment of only one particular group fails to meet that burden because it fails to show that similarly situated persons were treated differently.  That is, telling the court how many minorities have been prosecuted does nothing to prove how many non-minorities have not been.  The Court also reiterated that defendants' preserved only a selective prosecution claim, and not a selective enforcement claim.

Second, the Court rejected defendants' argument, raised for the first time on appeal, that the indictment was multiplicitous because it improperly charged two conspiracies when only a single conspiracy occurred.  The Court so held because the conspiracies have separate elements, and each requires proof of a fact which the other does not.       

Third, the Court rejected the defendants' argument that the creation of the stash house robbery scheme by the government constituted outrageous government conduct in violation of the Fifth Amendment.  The Court first questioned whether such a defense has ever even been recognized by the Court or the Supreme Court.  The Court then held that the government's conduct was not outrageous; merely presenting defendants with a non-unique opportunity to commit a crime, of which they are more than willing to take advantage, does not amount to outrageous government conduct.  The Court so held even though the government's CI suggested the robbery, and an undercover detective invented the idea of a stash house filled with cocaine and armed guards and offered defendants a van to use.    

Fourth, the Court affirmed the district court's decision not to give an entrapment instruction, finding that defendants failed to present sufficient evidence to create a jury issue on inducement.

Fifth, the Court rejected defendants' sentencing entrapment argument, which was raised for the first time on appeal.  The Court held that the Supreme Court's decision in Apprendi has no application to a sentencing entrapment defense.       

Sixth, the Court held that the district court did not abuse its discretion in dismissing a juror who knew the defendant's wife and styled her hair on a regular basis.  It was well within the district court's discretion to conclude that the juror's relationship to the defendant's wife was financial in nature and too close, and that this created a greater likelihood of her being influenced by her relationship to the defendant's wife.  And, in any case, defendants failed to show that the replacement of the juror resulted in prejudice requiring reversal.  

Seventh, the Court rejected defendant's argument that his right to have all proceedings in open court transcribed was violated because the court reporter failed to transcribe the recorded conversations that were admitted into evidence.  Both the recordings and corresponding written transcripts were admitted into evidence at trial, so, under these circumstances, nothing in the Court Reporter Act requires that the audio or video recordings also be transcribed by the court reporter. 

Finally, the Court considered defendants' argument that the section 924(c) count must be dismissed because one of the two predicates--conspiracy to commit Hobbs Act robbery--is an invalid predicate and the jury entered a general verdict.  The Court first agreed that it was error for the district court to deny defendants' motion to dismiss the predicate of Hobbs Act conspiracy and to submit that crime as a valid predicate in Count 3 for the jury's consideration.  In so finding, the Court cited to Stromberg v. California for the proposition that it is error to instruct a jury that it can convict on alternative theories of guilt, one of which is invalid.  Nonetheless, the Court found that the government had carried its burden in demonstrating that any error was harmless because the trial record makes clear that the two predicate conspiracy crimes were so inextricably intertwined that no rational juror could have found that defendants carried a firearm in relation to one predicate but not the other.  The Court emphasized the importance of the factual record when evaluating section 924(c) crimes after Davis through its discussion of its prior published opinions in In re Navarro, In re Cannon, and In re Gomez.