Steiger: Granting Rehearing En Banc

In United States v. Steiger, No. 22-10742 (Nov. 27, 2023), the Court sua sponte ordered that the appeal be reheard en banc.  

The panel, in vacating Mr. Steiger's sentence, found itself bound by United States v. Parks, 823 F.3d 990 (11th Cir. 2016).  Chief Judge William Pryor concurred, but urged the Court to rehear the case en banc to reconsider Parks, which requires a per se rule of reversal for  § 3553(c)(2) errors even when a defendant fails to object to the explanation of his sentence before the district court.  In his view,  § 3553(c) challenges should be treated like all other procedural sentencing challenges, which are reviewed for plain error when a defendant fails to object in the district court.  

Perez: While § 3147-enhanced Sentence Can Exceed Statutory Maximum for Underlying Offense, Issue of Whether Felony Offense Committed While on Pretrial Release Must be Submitted to Jury

In United States v. Perez, No. 22-10267 (Nov. 14, 2023) (Jordan, Lagoa, Ed Carnes), the Court affirmed Mr. Perez's sentence.  

While on bond pending trial, Mr. Perez was convicted of two felonies--violating 18 U.S.C. §§ 922(n) and 922(j).  The government informed him that, pursuant to § 18 U.S.C. § 3147, it was going to seek a ten-year consecutive sentence.  In relevant part, § 3147 provides that, if a person commits a felony offense while on pretrial release, he “shall be sentenced, in addition to the sentence prescribed for the offense, to . . . a term of imprisonment of not more than ten years,” with the additional term to be “consecutive to any other sentence of imprisonment.”  

Here, the § 922(n) conviction carried a statutory maximum sentence of 5 years in prison, while the § 922(j) conviction carried a statutory maximum sentence of 10 years in prison.  Run consecutively, that resulted in a total maximum sentence of 15 years, notwithstanding the consecutive 10 years' tacked on pursuant to § 3147.  Mr. Perez objected to the 10-year consecutive sentence, asserting that there was an Apprendi error because (a) the 10-year sentence exceeded the maximum sentences permitted for his underlying offenses of conviction, and (b) the jury never found beyond a reasonable doubt that he committed a felony offense while on pretrial release (the necessary fact for the § 3147 consecutive sentence).  In his view, § 3147 only allows a court to increase (i.e., enhance) a sentence within the statutory maximum for the underlying offense(s) of conviction.  

The Court held that a sentence imposed pursuant to § 3147 can exceed the maximum term prescribed for the underlying offense(s) of conviction.  But in such a circumstance the issue of whether the person committed a felony offense while on pretrial release must be submitted to a jury and proven beyond a reasonable doubt pursuant to Apprendi and its progeny.  In so holding, the Court joined the Third and Second Circuits.  

The Court, however, affirmed Mr. Perez's sentence, noting that an Apprendi violation does not automatically lead to reversal.  Here, the error was harmless beyond a reasonable doubt because, on numerous occasions throughout the trial and appeal, Mr. Perez did not dispute that he was on pretrial release at the time of the §§ 922(n) and (j) offenses.     

McCall: Officers Relied Upon iCloud Search Warrant in Good Faith

In United States v. McCall, No. 21-13092 (Oct. 27, 2023) (Rosenbaum, Branch, Brasher), the Court affirmed the denial of Mr. McCall's motion to suppress.  

The Court considered how the exclusionary rule's good faith exception applies to the search of a cloud storage account.  The warrant in question--for Mr. McCall's iCloud account--permitted a search of almost all of the account's data, with no time limitation.  In affirming the denial of the suppression motion, the Court noted that although Fourth Amendment standards are largely settled, their application to developing areas of technology are not, and law enforcement officers operating in good faith may struggle to apply existing standards to new circumstances.  Here, though the government conceded that the iCloud warrant fell short in certain respects, reasonable officers could have believed it to be valid.  

Of note, with regard to a warrant's particularity, the Court noted that the preferred method of limiting the scope of a search warrant for a cloud account will usually be time-based.  In the Court's view, by narrowing a search to the data created or uploaded during a relevant time connected to the crime being investigated, officers can particularize their searches to avoid general rummaging. As a result, cloud or data-based warrants with a sufficiently tailored time-based limitation can undermine any claim that they are the internet-era version of a general warrant.

Judge Rosenbaum concurred, writing separately to comment on the panel opinion's conclusion that "in the mine run of cases, . . . a time-based limitation will be both practical and protective of privacy interests."  In her view, particularity's guiding principle requires a warrant to be as specific as possible when it comes to identifying things to be searched, and that can't be accomplished "if we artificially determine beforehand that a single criterion--say, the inclusion of a time period in a warrant--means the warrant satisfies the particularity requirement."  That is, including a time period doesn't relieve a warrant from otherwise having to particularly describe the things to be searched and seized to the extent possible.  With regard to electronic data, she believes warrants should also describe the categories or evidence sought--for instance, photographs, communications, and records--and should identify what subject matter those categories of evidence must pertain to.