Cody: No COA Required for Choice of Sentencing Remedy Following Successful 2255 Motion

In United States v. Cody, No. 19-11915 (May 28, 2021) (William Pryor, Luck, and Marks (MD AL)), the Court held that a certificate of appelability is required when appealing from a district court’s decision to simply remove a now-illegal ACCA enhancement without re-sentencing the defendant on other counts.  The Court explained that such a decision about the choice of remedy was part of the 2255 proceeding, not the criminal proceeding.  And because the defendant lacked a COA, the Eleventh Circuit lacked jurisdiction.  In so holding, it appeared to acknowledge that the Fourth Circuit has reached a contrary holding.

Roberson: Upholding Section 666 Bribery Convictions

In United States v. Roberson, No. 18-14654 (Wilson, Branch, Restani (Int’l Trade)), the Court affirmed the defendants’ convictions for bribing an Alabama state representative.

The Court first held that the evidence was sufficient to support the defendant’s bribery convictions under 18 U.S.C. 666.  The Court rejected the defendants’ argument that the “official acts” requirement recognized in McDonnell for the bribery statute in 18 U.S.C. 201 also applied to Section 666.  The Court rejected the defendants’ argument that the official was not “agent of Alabama” but rather an agent of the Alabama legislature.  And it rejected their argument that the “retainer” theory of liability was invalid and implicated their First Amendment rights.

The Court next found no reversible error with regard to the jury instructions, rejecting similar arguments made in the sufficiency context.

Finally, the Court found no abuse of discretion in refusing to sever the defendants for trial.  The defendant argued that joinder with his attorney resulted in the exclusion of certain evidence that prevented him from making an advice-of-counsel defense.  The Court rejected that argument because the evidence was essentially cumulative and had relatively little probative value.

Cook: Vacating Denial of Compassionate Release Motion for Failure to Consider 3553(a) Factors

In United States v. Cook, No. 20-13292 (May 27, 2021) (Jordan, Marcus, Ginsburg (CADC)), the Court vacated the denial of a motion for compassionate release and remanded for further proceedings.

The Court held that, as in the 3583(e) and 3582(c)(2) contexts, the district court must consider the 3553(a) factors under 3582(c)(1)(A)(i).  The Court vacated the denial because the district court’s order and record failed to demonstrate that the court considered the 3553(a) factors.  The motion was based primarily on the pandemic, but the court’s order failed to mention it.  The court’s boilerplate prefatory language, and the fact that the judge originally presided over the criminal case, did not permit an assumption that the court considered the 3553(a) factors.  Because the record did not permit meaningful appellate review, the Court vacated and remanded.

Estepa: Upholding Wire Fraud Convictions Against Sufficiency Challenges

 In United States v. Estepa, No. 19-12272 (May 25, 2021) (Lagoa, Anderson, Marcus), the Court affirmed the defendants’ wire fraud convictions.

The Court rejected the defendants’ two arguments that the evidence was insufficient to support their convictions, which arose from misrepresentations made in bidding on local government construction contracts.  First, the Court found that the evidence was sufficient to show that the defendants engaged in a scheme to defraud by intentionally making material misrepresentations that it intended to comply with certain legal requirements and not to use subcontractors.  The Court rejected the defendants’ argument that there was no scheme to defraud because the government did not suffer a financial loss.  Second, the Court found that the evidence was sufficient to show that the defendants knowingly and voluntarily agreed to commit the scheme to defraud and pursued overt acts in furtherance of that agreement.  The Court rejected the defendants’ argument that their misstatements arose from a reasonable and good-faith interpretation of a complex regulatory regime.

Taylor: Upholding Electronic Search Condition of Supervised Release for Non-Sex Offender

In United States v. Taylor, No. 20-10742 (May 21, 2021) (Jill Pryor, Luck, Tjoflat) (per curiam), the Court upheld the defendant’s terms of supervised release and his sentence for his felon-in-possession offense.

The defendant argued that the district court erred by imposing an electronic search condition of supervised release to deter him from future offenses.  Although typically reserved for sex offenders, the Court held that such a search condition may also be imposed on other offenders, such as those who frequently recidivate or violate their supervised release in a way that poses a danger to others.  In this case, there was no abuse of discretion because, although the defendant was not a sex offender and the condition did not directly relate to his firearm offense, it was reasonably related to his history as a recidivist.  The condition was not overbroad because it allowed access only at a reasonable time when there was reasonable suspicion.  And the specific areas to be searched were not vague because those areas were enumerated in the condition.

The Court also held that the 30-month sentence, a 3-month upward variance, was not substantively unreasonable.

Potts: No Abuse of Discretion in Declining to Reduce SR Term Under Section 404 of the First Step Act

In United States v. Potts, No. 19-12061 (May 19, 2021) (Lagoa, Hull, Marcus), the Court affirmed the denial of a motion for a sentence reduction under Section 404.

The Court held that the district court did not abuse its discretion in declining to reduce one of the defendant’s terms of supervised release.  The district court referred to the 3553(a) factors, the facts and circumstances of the case, the government’s response, probation’s memorandum, and the defendant had an extensive criminal history.  The Court rejected the defendant’s argument that the record did not permit meaningful appellate, distinguishing its recent decisions in Stevens and Russell.

Castaneda: Upholding Enticement Convictions and 35-year Sentence

In United States v. Castaneda, No. 19-12623 (May 19, 2021) (William Pryor, Luck, Ed Carnes), the Court affirmed the defendant’s enticement convictions and sentence.

First, the Court found no error in refusing to dismiss the indictment based on outrageous government misconduct by exposing him to child pornography during its sting operation.  The Court emphasized he (not the government) exposed himself to child pornography, and no court has ever found such government misconduct to rise to the level of dismissal.  “The hunt for Sasquatch will have continue in another case.”

Second, the Court upheld the denial of a motion to suppress child pornography found on the defendant’s computers.  Two friends living in his apartment discovered the pornography and voluntarily turned the computers over to the FBI, which then obtained a search warrant.   Because those private actors acted independently of law enforcement, there was no Fourth Amendment violation, regardless of the defendant’s consent.

Third, the district court did not abuse its discretion in instructing the jury that the defendant did not have a Fifth Amendment privilege to refuse to answer questions on cross examination, and in instructing the jury that his refusal to answer questions could be used to assess his credibility.

Fourth, the Court found no abuse of discretion in excluding the defendant’s expert witness, Dr. Herriot, who would testify about generalized background information that people sometimes mix fact with fiction on the internet.  The Court had recently upheld the exclusion of that expert’s testimony in another case.

Finally, the Court found that the defendant’s 35-year guideline sentence, five years above the 30-year mandatory minimum and well below the maximum of life, was not substantively unreasonable.

Stevens: Courts Need Not Consider 3553(a) Factors in Section 404 Proceeding

In United States v. Stevens, No. 19-12858 (May 19, 2021) (Lagoa, Anderson, Marcus), the Court vacated the denial of a motion for a sentence reduction under Section 404 of the First Step Act.

The parties agreed, and the Court accepted, that the defendant had a “covered offense” under Section 404, and so was eligible for a reduction to his term of supervised release.  The Court then held that, although it may be best practice for district courts may consider the 3553(a) factors when exercising their discretion, Section 404 does not require that they do so.  The Court purported to follow four other circuits for that point, though it did not mention that other circuits had reached a contrary conclusion.  The Court ultimately vacated and remanded because the record did not permit meaningful appellate review of the district court’s alternative discretionary denial with respect to the term of supervised release.

Jackson: Upholding Enhancement Under 2K2.1(b)(6)(B) Where Sale of Drugs and Guns Were Negotiated as a Package Deal

In United States v. Jackson, No. 19-14883 (May 18, 2021) (William Pryor, Luck, Ed Carnes), the Court affirmed the defendant’s sentence.

The sentence was enhanced under USSG 2K2.1(b)(6)(B) for using or possessing a gun “in connection with” another felony, which occurs where the gun facilitated, or had the potential to facilitate, the other felony offense.  The district court did not clearly err by finding that connection here, where the defendant negotiated guns and drugs to be sold at the same time, even though the defendant ultimately sold the drugs first and the gun later.  Coordinating the sale of both at the same time shored up the drug sale and allowed the seller to conduct two sales with a minimal increase in the risk of detection.

Garcon: Disqualifying Safety-Valve Criteria in 3553(f)(1)(A)-(C) Are Disjunctive, Not Conjunctive

In United States v. Garcon, No. 19-14650 (May 18, 2021) (Jordan, Jill Pryor, Branch), the Court, after a government appeal, vacated the defendant’s sentence that had been imposed with the benefit of the safety valve in 3553(f).

The Court held that the criteria in 3553(f)(1)(A)-(C) are disjunctive, so that if any of those subsections apply, the defendant is not eligible for safety valve relief.  The Court rejected the defendant’s argument that a defendant is ineligible only if (A) through (C) all exist.  Because the defendant had a three-point offense under (B), he was ineligible for safety valve relief, even though he did not have more than 4 points under (A) or a 2-point violent offense under (C).

Judge Branch concurred, adding that the result was also supported by the rarely-used semantic canon referred to as the conjunctive negative proof.

 

Dominguez: 2G2.2(b)(5) Enhancement for Pattern of Sexual Abuse Does Not Require Physical Contact

In United States v. Dominguez, No. 19-11378 (May 13, 2021) (Jordan, Jill Pryor, Branch), the Court affirmed in part and reversed in part the defendant’s sentence.

To determine whether an enhancement was appropriate under USSGS 2G2.2(b)(5) for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor, the Court sided with the government over the defendant and the Fourth Circuit over the Seventh Circuit in holding that “sexual abuse or exploitation,” which effectively incorporates the phrase “sexual activity” in 18 USC 2422(b), did not require actual or attempted physical contact between two persons.  Rather, the phrase means action or pursuit relating to intercourse or to the desire for sex or carnal pleasure.  In this case, the defendant sent a minor a photo of his penis and asked her for naked pictures, and that constituted “sexual activity.”  However, the Court remanded for the district court to determine, in the first instance, whether the defendant’s conduct could have been charged as a criminal offense, a separate requirement for the enhancement.

Edward: Section 404 Is Self-Executing and Permits Courts to Add Supervised Release if They Reduce the Overall Sentence

In United States v. Edward, No. 19-13366 (May 13, 2021) (Jordan, Newsom, Tjoflat), the Court affirmed the ruling on the defendant’s motion for reduced sentence under Section 404 of the First Step Act.

First, the Court held that Section 404 is self-executing.  Therefore, a motion under that Section need not be brought under 3582(c)(1)(B), which is limited to reductions to the term of imprisonment (and not supervised release).  Second, and as a result, a district court has the authority under Section 404 to add a new term of supervised released, provided that it reduces the defendant’s overall sentence.  Here, the court appropriately exercised that authority by reducing a life sentence down to 260 months, and then adding an 8-year term of supervised release.

Bryant: USSG 1B1.13 Remains an "Applicable Policy Statement" Limiting Compassionate Release

In United States v. Bryant, No. 19-14267 (May 7, 2021) (Brasher, Luck, Martin), the Court affirmed the denial of compassionate release.

Breaking with the seven other circuits to address the issue, the Court held that USSG 1B1.13 remains an “applicable policy statement,” and thus constrains courts considering a defendant-filed 3582(c)(1)(A) motions.  The Court also held that Application Note 1(D)—a catchall provision for defining “extraordinary and compelling” circumstances—applies only to BOP-filed motions, and so defendant-filed motions must therefore satisfy one of the other criteria in Application Note 1(A)-(C).

Judge Martin dissented in a 20-page opinion, emphasizing that the majority limits inmates’ ability to seek compassionate release, prevents courts from conducting independent and individualized consideration, and revives the problem that the First Step Act was meant to resolve by leaving the determination in BOP’s control.

Brown: En Banc Court Vacates Conviction For Dismissing Juror Guided by the Holy Spirit

In United States v. Brown, No. 17-15470 (May 6, 2017) (William Pryor, Newsom, Branch, Grant, Luck, Lagoa, and Brasher), the en banc Court vacated the defendant’s conviction.

The en banc majority held that the district court abused its discretion by dismissing a juror who said that the Holy Spirit told him that the defendant was not guilty, but then assured the court that he was following the instructions and basing his decision on the evidence at trial.  Because there was a “substantial possibility” that he was basing his decision on the evidence and the law, removing the juror violated the defendant’s Sixth Amendment right to a unanimous jury.

Judge Newsom, joined by Judge Grant, concurred, emphasizing that the juror’s Holy Spirit statement had to viewed in the context of the record and that the case wasn’t really about religion.

Judge Brasher, joined by Judge Branch, concurred, opining that there was no reason to inquire into the juror’s thoughts at all because his comment occurred at the outset of deliberations and the juror had committed no misconduct.

Judge Wilson, joined by Judges Martin, Jordan, and Rosenbaum (Jill Pryor was recused), dissented, emphasizing that the appellate court should not second guess the district court’s factual findings about the juror, which should be reviewed deferentially.

Judge Rosenbaum, joined by Judges Wilson and Martin, dissented, emphasizing that the majority’s reasoning would equally prevent, and thus deter, a judge from dismissing a juror who said that the Holy Spirit told him to convict.

Foster: Affirming Denial of Davis-Based, Multiple Predicate § 2255 Motion

In Foster v. United States, No. 19-14771 (May 4, 2021) (Jordan, Marcus, Ginsburg), the Court affirmed the district court's denial of Foster's Davis-based, multiple-predicate § 2255 motion.

This case involves a reverse sting operation wherein Foster was charged with conspiring with others to commit armed robbery of a house he believed held a Colombian cartel's drug stash.  Foster was charged with: (1) conspiracy to commit Hobbs Act robbery; (2) conspiracy to possess with intent to distribute at least 5 kg of cocaine; (3) attempt to possess with intent to distribute at least 5 kg or more of cocaine; (4) conspiracy to use and carry a firearm during and in relation to the crimes alleged in Counts 1, 2, and 3; (5) using and carrying a firearm during and in relation to the crime alleged in Counts 1, 2, and 3; and (6) possessing a firearm as a convicted felon.  At trial, the jury was instructed that it could find Foster guilty of Counts 4 and 5 if it found he carried or possessed a firearm to commit the crimes charged in Count 1 or Counts 2 or 3.  As to Count 5, the court instructed the jury that it had to unanimously agree upon the way in which Foster committed the violation.  No such unanimity instruction was given with respect to Count 4.  The jury returned a general verdict finding Foster guilty on all six counts.  After the Supreme Court's opinion in Davis, Foster was granted leave to file a second or successive § 2255 motion, which the district court denied.         

On appeal, the Court first addressed the government's procedural default argument, raised for the first time on appeal.  The Court found, "[u]nder the peculiar circumstances of this case," that the government waived the affirmative defense of procedural default.  

Moving on to the merits of Foster's claim, the Court held that he could not prevail because the Hobbs Act conspiracy was inextricably intertwined with the conspiracy and attempt to possess with intent to distribute cocaine.  Any inclusion of an invalid predicate offense in the indictment and jury instructions was harmless.  In so holding, the Court heavily relied on its previous opinion in Granda v. United States, 990 F.3d 1272 (11th Cir. 2021).      

  

Jackson: Denying Rehearing En Banc

In United States v. Jackson, No. 19-11955 (May 3, 2021) (denying relief under the First Step Act because the quantity of drugs involved in defendant's 1999 offense would have still triggered a mandatory minimum under the Fair Sentencing Act of 2010), the Eleventh Circuit denied rehearing en banc.  

Chief Judge William Pryor, joined by Judge Grant, wrote separately in support of the Court's decision to deny rehearing en banc.  More specifically, he wrote to respond to the dissent's arguments that the panel misread section 404(b) of the First Step Act.  Chief Judge Pryor clarified that section 404(b) contains two implicit limits on the availability of relief: (1) the district court may not grant a reduction if the trafficker already received the lowest statutory penalty that would be available to him under the Fair Sentencing Act; and (2) the district court is bound by a previous finding of drug quantity that was used to determine the trafficker's statutory penalty at the time of sentencing.  He believes the dissent reads these limits out of section 404(b), and in so doing, commits three errors of statutory interpretation--(1) it selectively fails to consider what the text of the First Step Act fairly implies;(2) it neglects to read section 404 in the light of the statutory scheme; and (3) it focuses on the general purpose of the First Step Act to the exclusion of its specific text.

Judge Martin, joined by Judge Rosenbaum, dissented from the denial of rehearing en banc.  They argue that by attributing a drug amount to the defendant that was neither found by a jury nor charged in his indictment, the panel created a limit on First Step Act relief found nowhere in the text of the statute.  As a result, the reach of the First Step Act has been curtailed in the Eleventh Circuit, creating a troubling disparity between defendants sentenced before and after Apprendi v. New Jersey, 530 U.S. 466 (2000).