Gonzalez: Reaffirming That SR Sentences May Be Reduced Under Section 404 of the First Step Act, But Again Affirming the District Court's Denial of Relief Post-Concepcion

In United States v. Gonzalez, No. 19-14381 (June 21, 2023) (Jordan, Newsom, Tjoflat), the Court revised its earlier panel opinion from August 2021 in light of the Supreme Court's decision in Concepcion.  It again affirmed the denial of Mr. Gonzalez's motion under § 404(b) of the First Step Act.   

The Court reaffirmed its conclusion that Mr. Gonzalez's revocation of supervised release sentence was eligible for a reduction under the First Step Act because the underlying offense was a covered offense under § 404(b).  

The Court noted, however, that eligibility "is not the end of the matter," because though § 404(b) authorizes district courts to reduce sentences of defendants with covered offenses, it does not require them to do so.  In his post-Concepcion briefing, Mr. Gonzalez urged the Court to hold that district courts must always calculate and consider a defendant's new range under the Sentencing Guidelines before exercising its discretion under § 404(b), as the Seventh Circuit held in United States v. Corner, 967 F.3d 662, 666 (7th Cir. 2020), but the Court declined.  The Court disagreed with Mr. Gonzalez's argument that because the district court never made any determination as to his applicable penalty, it failed to demonstrate that it "reasoned through [his] arguments," as required by Concepcion.  That is, here, the district court did not abuse its discretion in denying Mr. Gonzalez's motion because it provided a brief statement of reasons that was clear and supported by the record.  As a result, the district court's explanation of its refusal to reduce Mr. Gonzalez's sentence did not violate Concepcion.     

Laines: Affirming Convictions and ACCA-Enhanced Sentence

In United States v. Laines, No. 21-11535 (June 6, 2023) (Bill Pryor, Rosenbaum, Marcus), the Court affirmed Mr. Laines's drug- and firearm-related convictions as well as his ACCA sentence, which was based upon a prior Florida cocaine conviction.  

Mr. Laines first argued that the evidence was insufficient to support two of his convictions--possession with intent to distribute and a related firearms offense--because there was no evidence that he had the intention to distribute the drugs he possessed.  The Court disagreed, finding that his intent to distribute had been proven circumstantially.  

He next argued that he was entitled to a new trial based on Brady and Giglio.  More specifically, he argued he was entitled to a new trial both because the police had unconstitutionally searched his phone upon his arrest and failed to disclose said search to the defense, and because the government failed to disclose prior to trial that one of its witnesses--one of the arresting officers in the case--had committed misconduct and was the subject of multiple internal investigations.  The Court disagreed, finding no reasonable probability of a different trial outcome.  

Finally, Mr. Laines argued that he was not ACCA because his prior Florida cocaine conviction was not a "serious drug offense" because its definition of cocaine is more expansive than the federal definition.  The Court, reviewing for plain error, found none, relying on its prior panel precedents in Travis Smith and Xavier Smith.  The Court expressly refused to find that its opinion in Chamu had abrogated its precedents about a prior conviction under Fla. Stat. § 893.13(1) qualifying as a "serious drug offense" under the ACCA.  The Court also clarified that Mr. Laines, as the appellant, bore the burden of establishing that the district court had plainly erred.  

Judge Rosenbaum dissented in part.  She believed that the sentence should be vacated and the case remanded for the government to establish that Mr. Laines was in fact ACCA.  That is, in light of Chamu, the government bore the burden of demonstrating that Mr. Laines's prior Florida cocaine conviction still qualified as a "serious drug offense."  More specifically, she noted that unlike in Chamu--which was an immigration case--here, in the criminal-sentencing environment, the government bears the burden of proving any sentencing enhancement--including an ACCA enhancement--applies.  

She also clarified that Mr. Laines's argument regarding the overbreadth of his Florida cocaine conviction was not precluded by prior panel precedent.  In her view, Chamu expressly explained that there are three categories of stereoisomers: optical isomers, geometric isomers, and nongeometric diastereomers.  So if nongeometric diastereomers of cocaine exist, then Florida’s definition of the substance is categorically overbroad in comparison to the federal definition.  She would have remanded for the government to show that there are no nongeometric diastereomers of cocaine.  

Finally, she also noted that a defendant's failure to object to the ACCA classification cannot relieve the government of its burden to establish the enhancement, nor can the defendant's failure to object to allegations of fact in the PSI.  This is so because, whether a cocaine-related conviction under section 893.13(a)(1) qualifies as a “serious drug offense” is a legal question, the answer to which is the same in every case for every defendant with such a conviction.  In her view, it would be "quite a stretch to characterize it as the type of 'allegation[] of fact' that we deem admitted in a PSI if a defendant fails to object."                  

Ware: Affirming Convictions and Sentence

In United States v. Ware, No. 21-10539 (June 1, 2023) (Newsom, Luck, Tjoflat), the Court affirmed Mr. Ware's convictions and sentence.

Mr. Ware was convicted of thirteen counts of Hobbs Act robbery and associated firearm offenses, and sentenced to life in prison.  On appeal, he raised three challenges to his convictions and one challenge to his sentence.   

Mr. Ware first contended the district court erred by not holding a formal Daubert hearing before admitting expert fingerprint evidence.  Mr. Ware relied on a 2009 United States National Resource Counsel ("NRC") report and subsequent 2016 President's Counsel of Advisors on Science and Technology ("PCAST") to argue that because fingerprint analysis involves individual human judgement, the resulting fingerprint comparison conclusion can be influenced by cognitive bias, rendering it unreliable.  The Court noted that a Daubert hearing is not always required and found that the district court had not abused its discretion in not holding a hearing.  The district court considered the reports and arguments presented and found that fingerprint evidence was reliable enough as a general matter to be presented to the jury.  Many of the critiques of fingerprint evidence found in the PCAST report go to the weight that ought to be given fingerprint analysis, not to the legitimacy of the practice as a whole.  Therefore, it was properly admitted and properly subject to cross-examination.      

He next contended that the district court erred by admitting lay identification testimony by two FBI case agents who met with Mr. Ware upon his arrest.  The court allowed the agents to identify Mr. Ware as one of the perpetrators of the robberies after viewing cellphone photos and surveillance footage and confirming his identification based upon their interactions with him after his arrest.  The Court found no abuse of discretion because the agents had first-hand knowledge of Mr. Ware's appearance outside the courtroom setting, and had contact with him for a combined 5 hours.  They also familiarized themselves with him less than two weeks after the last robbery, whereas the jury--though also capable of comparing Mr. Ware in the courtroom with the surveillance footage and photos found in a cellphone--would have been doing so by looking at Mr. Ware almost two years later.    

Finally, Mr. Ware contended the district court erred by instructing the jury on flight and concealment.  The Court found that the district court did not abuse its discretion in giving the instruction because the government presented evidence of concealment--Mr. Ware was hiding under a bed when law enforcement arrived to arrest him.      

Mr. Ware also challenged his sentence--more specifically, the application of the bodily restraint sentencing enhancement to three of the nine robberies.  Section 2B3.1(b)(4)(B) provides an enhancement for robberies where a victim was physically restrained by being tied, bound, or locked up.  But the enhancement also applies where the defendant's conduct ensured the victims’ compliance and effectively prevented them from leaving a location.  Here, the Court found the enhancement properly applied.  

Verdeza: Upholding Healthcare Fraud Convictions/Sentence Over Numerous Challenges

In United States v. Verdeza, No. 21-10461 (May 31, 2023) (William Pryor, Rosenbaum, Marcus), the Court affirmed the defendant’s healthcare fraud convictions and sentence.

First, the Court held that the evidence was sufficient to support the convictions under an aiding and abetting theory.

Second, the district court did not commit plain error by allowing an FBI agent to give “summary” testimony because there was no precedent holding that such testimony is, in itself, is improper. The district court did not abuse its discretion by admitting evidence under Rule 404(b) because no notice was required under the pre-2020 version of the Rule and the evidence was not impermissible propensity evidence. And any error by allowing the government to ask two leading questions was harmless given the overwhelming evidence of guilt.

Third, evidence at trial supported the district court’s decision to give a deliberate ignorance instruction, and any error was harmless given the evidence of the defendant’s actual knowledge.

Fourth, as to sentencing, there was no precedent supporting the defendant’s argument that the definition of “loss” in the commentary was ambiguous post-Dupree, and so there was no plain error in calculating the amount based on the defendant’s intended loss. There was no clear error in declining to apply the minor-role reduction. There was no error in the restitution award because the statute permits courts to order members of a fraud to jointly repay the victims. And the 48 month sentence, which fell below the guideline range, was not substantively unreasonable.