Elso: Case is No Longer Pending Once Eleventh Circuit Mandate Issues

In U.S. v. Elso, No. 06-14954 (June 19, 2009), the Court held that a district court lacked authority to consider the defendant’s motion under Fed. R. Crim. P. 12(b)(3)(B), challenging the subject matter jurisdiction over one of his counts of conviction.
Fed. R. Crim. P. allows a challenge to a jurisdictional defect in the indictment to be filed "while the case is pending." However, Elso filed his Rule 12 challenge after he lost his appeal of his conviction in the Eleventh Circuit, and after the mandate of that Court had issued. He filed it after the United States Supreme Court denied his petition for a writ of certiorari, but before the Supreme Court denied his petition for rehearing of this denial. The Court held that the case was no longer pending at this time.
First, once the mandate of the Eleventh Circuit issued, the case was no longer pending, because Elso had neither moved to stay the mandate, or seek its recall. Second, under the Supreme Court Rules, the petition for rehearing did not suspend the effect of the denial of the writ of certiorari.

Jefferson: Failure to investigate brain damage not ineffective assistance

In Jefferson v. Hall, No. 07-12502 (June 12, 2009), the Court (2-1, Carnes, J. dissenting) reversed the grant of habeas relief to a Georgia inmate sentenced to death for a 1985 murder.
The Court found that counsel had not given ineffective assistance at the penalty phase of the trial. Jefferson claimed that counsel failed to present evidence of his claimed organic brain damage.
The Court noted that "strategic decisions" of counsel are reviewed deferentially: no relief can be granted on ineffectiveness grounds unless it is shown that "no reasonable lawyer" would have so acted in the circumstances. The Court noted that with hindsight, it could always be said that trial counsel "could have done something different." But ineffectiveness unless redresses what was "constitutionally compelled."
The Court found no ineffectiveness in counsel’s decision to pursue an innocence strategy, noting that their psychologist expert testified that he told counsel it would be a waste of time to investigate brain damage.
[Carnes, J., dissenting, pointed out that the residual doubt defense presented at the penalty phase was not inconsistent with the evidence of brain damage which defense counsel failed to investigate.]

Docampo: 270 month sentence on 18 year old is reasonable

In U.S. v. Docampo, No. 08-10698 (June 15, 2009), the Court (2-1, Barkett, J., dissenting in part) affirmed as "reasonable" a sentence of 210 months, plus a 60 month consecutive sentence, for cocaine trafficking and gun conviction convictions.
The Court agreed with Docampo that the district court erred in admitting the hearsay statement of an accomplice’s girlfriend about a threatening phone call that Docampo made to the girlfriend. But the Court found the error harmless, in light of other evidence.
The Court rejected a sentence manipulation claim based on Docampo’s age at the time of the government sting. The Court noted that Docampo was an adult when the sting occurred.
The Court also rejected the challenge to the failure to give Docampo a minor role sentence adjustment, finding that the district court was justified in using his possession of a firearm as basis for denying minor role.
The Court affirmed the sentence as reasonable, noting the district court’s comment about the "upsurge" of crime by young persons. The Court noted that cooperating co-defendants had received sentences of 180 months and 60 months. Two juveniles were prosecuted as adults in state court and received sentences of probation. But disparity is permitted for defendant who cooperate with the government, and disparity between state and federal sentences is not a goal of 3553(a).
[Barkett, J, dissenting, found the sentence "procedurally unreasonable," because the district court did not adequately explain its decision, other than stating that the sentence was needed for "general deterrence." The district court did not adequately grapple with the drastic disparity among the accomplices’ sentences. The extreme disparity also made the sentence substantively unreasonable, because excessive.]

Sarras: 1,200-month sentence for step-daughter child porn affirmed

In U.S. v. Sarras, No. 08-11757 (June 16, 2009), the Court affirmed convictions and sentences for persuading a step-daughter to engage in sexually explicit conduct for photos.
The Court rejected the argument that a doctor the defense called as a witness should have been permitted to opine that, based on his expertise in examining penises, the penis shown on photographs was not that of the defendant. The Court found that the district court had not abused its discretion in concluding that comparing veins in erect penises was not a "reliable identification methodology."
The Court found no abuse of discretion in the preclusion of defense questioning of the victim, under Fed. R. Evid. 412, regarding subsequent sexual activity. "Victims of sexual abuse can be traumatized whether or not they have had other sexual relations."
The Court dismissed as "rank speculation" the claim that the Sheriff’s office had a financial interest in forfeiture, and therefore should have been cross-examined on this topic.
The Court rejected the argument that the social worker who testified for the government should not have been permitted to give lay opinion testimony, under Fed. R Evid. 701, that it is not unusual for a child sex victim to fail remember exact dates and times. The Court agreed that this was expert, not lay testimony, but found any error harmless, because "the key issue involved identifying the abuser, not pinpointing precisely when the abuse occurred."
The Court also rejected the challenge to the failure to conduct a Franks hearing regarding the search affivadit for Sarras’ home. The Court noted that the allegations in the affidavit regarding sexual activity and photographs sufficed to support probable cause for a search.
Finally, the Court affirmed the sentence of 1,200 months. The Court affirmed a two-level obstruction of justice enhancement based on Sarras’ manipulation of photos of his penis to avoid conviction. The sentence was within the Guidelines range, and was reasonable for an offense "among the most egregious and despicable."

Demarest: Yacht dealer money laundering conviction upheld

In U.S. v. Demarest, No. 08-12296 (June 10, 2009), the Court affirmed money-laundering convictions and sentences for a yacht dealer who agreed to sell a yacht for cash to undercover agents posing as narcotics traffickers.
The Court found that the jury reasonably rejected Demarest’s defense that he was intoxicated when he agreed to the deal. Demarest mental efforts "suggest that he was not so drunk that he did not know what was happening."
The Court also found that the jury reasonably rejected the entrapment defense. The evidence overwhelmingly established Demarest’s predisposition. "It is hard to imagine a more enthusiastic money launderer."
The Court rejected Demarest’s argument, based on the Supreme Court’s recent decision U.S. v. Santos, that he did not launder "proceeds" of illegal activity, because the moneys at issue were the "receipts" from the sale of a yacht, not profits. The Court held that because Santos was decided by a plurality of the Court, its narrow holding regarding receipts only applied to gambling operations, not drug trafficking. The Court also found Cuellar v. U.S. inapplicable, because that case involved a design to "conceal" the proceeds of unlawful activity, and Demarest was charged with the intent to "promote" unlawful activity.
Turning to sentencing, the Court rejected Demarest’s double-counting challenge to his sentence, noting that the Sentencing Guidelines provide for a separate enhancement for certain types of money-laundering violations. The Court also found that the six-level enhancement for knowing the funds were the proceeds of the distribution of controlled substances was supported by the record.

Kapordelis: 420 month sentence for child porn

In U.S. v. Kapordelis, No. 07-14499 (June 1, 2009), the Court affirmed the convictions and 420-month sentence of an anesthesiologist charged with producing, receiving and possessing child pornography.
The Court rejected Kapordelis' argument that some of his photos were taken in Greece and the statute should not apply extraterritorially. The Court noted that Kapordelis transported his pictures from Greece into the United States and this nexus sufficed. The Court also rejected Kapordelis’ challenge to venue, pointing out that his crime was a "continuing offense," and the possession continued in Georgia.
The Court rejected the argument that evidence of Kapordelis sexual activities with young boys in the Czech Republic should not have been admitted under Fed. R. Evid. 404(b) because this activity was legal in that country. The Court noted that 404(b) contemplates the admission of other "wrongs," and noted that this evidence was sufficiently probative of Kapordelis’ knowledge of the photographs to be admitted.
Turning to the sentence, the Court rejected the argument that the district court erred in relying on the 2002 version of the Guidelines, instead of the 2003 version. The Court noted that since the district court granted an upward variance to 420-months, any error was harmless. For the same reason, the Court rejected Kapordelis’ double-counting challenge to certain guideline enhancements.
Finally, the Court upheld the sentence as reasonable, noting the large number of images Kapordelis possessed. The Court recognized that the district court failed to articulate why a 262-327 months guideline sentence would be disproportionately low, but found that the sentence was reasonable in relation to the other § 3553(a) factors.

Hoffman-Vaile: Dermatologist Obstruction Conviction Affirmed

In U.S. v. Hoffman-Vaile, No. 07-12629 (May 27, 2009), the Court affirmed the convictions of a dermatologist charged with Medicare fraud and obstruction of justice.
Applying plain error review, the Court rejected a challenge to the admission of reports prepared by a private administrator that processes and reviews claims for Medicare. Their admission did not affect the defendant’s substantial rights in view of the other substantial evidence. The Court also found no plain error in the admission of testimony of repeated instructions to the defendant on how to properly bill Medicare, because this testimony related to the defendant’s intent.
The Court also rejected the challenge to the conviction under 18 U.S.C. § 1519, which criminalizes destruction of documents in response to a federal investigation. Hoffman-Vaile claimed that the statute does not apply to responses to a grand jury investigation. The Court rejected this interpretation of the statute.
The Court rejected the argument that the calculation of loss, for sentencing purposes, was erroneous, because based on 100% of the fraudulent billing, when Medicare only paid Hoffman-Vaile for 80% of the billing, with the patient or private insurers paying 20%. The Court noted that patients and private insurers were also victims, and the amount was part of what Hoffman-Vaile intended to recover.
Turning to the forfeiture order, the Court rejected the argument that the amount of forfeiture should be reduced by the amount that Hoffman-Vaile paid in restitution to victims other than Medicare. The Court noted that forfeiture focuses on the defendant, not the victim.
Forfeiture is "punitive."

Spoerke: PVC pipe bombs are "destructive devices"

In U.S. v. Spoerke, No. 08-12910 (May 22, 2009), the Court held that a homemade explosive device made of polyvinyl chloride (PVC) pipe that could propel shrapnel was a "destructive device"under 26 U.S.C. §§ 5801 et seq. The Court noted that Spoerke admitted that his devices could hurt people. The government expert testimony established that the pipe bombs were designed as weapons, and were capable of propelling shards. Moreover, the jury was free to reject Spoerke’s assertion that he designed the devices for "social enjoyment" by exploding them under water.
The Court rejected Spoerke’s argument that the National Firearms Act was unconstitutional as applied to him, because pipe bombs are unlawful, and their regulation therefore cannot be justified under Congress’ taxation powers. Spoerke conceivably could have registered and paid taxes on his pipe bombs.
The Court also affirmed the denial of the motion to suppress physical evidence obtained after the vehicle Spoerke was riding in was stopped for littering. Once police spotted gloves, goggles, a face mask and a flashlight in plain view, and noted other suspicious circumstances, the police had an articulable suspicion that the occupants of the vehicle were engaged in a burglary, and reasonably prolonged the traffic stop to investigate further. In addition, the statements Spoerke gave during the traffic stop fell within the "public safety" exception to Miranda, which allows officers to question a suspect without first giving Miranda warnings when necessary to protect themselves or the general public.
The Court rejected the challenge to the admission of videos showing the jury explosions of devices similar to Spoerke’s. "The video demonstration was relevant to prove the nature of the devices." The Court rejected the challenge to the government’s reference to items seized in the vehicle as related to other crimes, pointing out that this was relevant to the claim that the pipe bombs "were designed as weapons."
Turning to the sentence, the Court rejected the argument that Spoerke should have received an acceptance of responsibility sentence reduction even though he went to trial, because he challenged only the constitutionality of the Firearms Act. The Court noted that Spoerke also contested whether his pipe bombs were destructive devices, and attempted to exclude evidence of his guilt. The Court upheld the 44 months sentence as substantively reasonable.

Lamarca: No Habeas Relief for Murder of Daughter's Husband

In Lamarca v. Sec. Dep’t of Corrections, No. 08-16775 (May 19, 2009), the Court denied habeas relief to a Florida inmate sentence to death for the 1995 murder of his son-in-law.
The Court rejected most of Lamarca’s claims because they were not presented to the Florida state courts, and therefore were not exhausted. The Court also rejected Lamarca’s argument that he was unfairly precluded at his trial from showing that his daughter wanted a divorce and therefore had a motive to kill her husband. The Court noted that the Florida Supreme Court had agreed with Lamarca on this issue, but found that the error was harmless in light of the strong evidence against him. The Court found that no jurists of reason would find this State determination to be an unreasonable application of federal law.

Owen: Appellate Counsel Not Ineffective

In Owen v. Dep’t of Corrections, No. 07-14727 (May 18, 2009), the Court denied habeas relief to a Florida inmate sentenced to death for murders committed in 1984.
The Court rejected the argument that Owen’s appellate counsel was ineffective because he labored under a conflict once Owen filed a bar complaint against him. Owen failed to point to specific evidence in the record that his interests were in fact compromised.
The Court also rejected the argument that the State violated Owen’s right to counsel when it questioned him about a murder without counsel present, after Owen had been charged with an unrelated burglary. The Court noted that the right to counsel had not attached in the murder case simply because it had attached in the burglary case.

Smith: No Abuse in Imposing High End of Guidelines in Amended Crack Sentence

In U.S. v. Smith, No. 08-13215 (May 19, 2009), the Court held that the district court, at a resentencing pursuant to 18 U.S.C. § 3582(c)(2) for a defendant eligible for a sentence reduction pursuant to the recent Amendment to the crack cocaine Guidelines, did not err in failing to adequately address the § 3553(a) factors when it imposed sentence at the high end of the amended guideline range. The Court stated that reversal on this ground is limited to situations "when the record contain[s] no evidence the district court had considered, or the defendant had even raised, the applicability of any of the § 3553(a) factors." Here, the defendant had raised these factors.
The Court also rejected the argument that the district court had the discretion to sentence below the amended guideline range, citing U.S. v. Melvin, 556 F.3d 1190 (11th Cir. 2009), cert.denied May 18, 2009.

Payne: Appellate counsel not ineffective

In U.S. v. Payne, No. 08-12944 (May 7, 2009), the Court rejected an inmate’s motion under 28 U.S.C. § 2255 which claimed ineffective assistance of appellate counsel.
Payne pointed out that his appellate counsel had failed to challenge on appeal the district court’s imposition of a two-level "abuse of trust" sentence enhancement based on Payne’s status as a pastor. The Court had held in U.S. v. Hall that a defendant’s status as a pastor did not suffice to support a two-level "abuse of trust" sentence enhancement. However, Hall predated Payne’s appeal. Payne’s appellate counsel raised other issues on appeal. "Therefore, it was a reasonable strategy for counsel to focus this Court’s attention on those issues that he felt were the strongest."

Bautista-Silva: Reasonable Suspicion to Stop Suburban on I-95

In U.S. v. Bautista-Silva, No. 08-13803 (May 11, 2009) (2-1) (Barkett, J., dissenting), the Court reversed the district court’s suppression of statements and physical evidence obtained as a result of a traffic stop which resulted in the arrest of five illegal aliens from Mexico.
A U.S. Border Patrol agent was monitoring southbound interstate traffic on Interstate 95 in Brevard County, Florida, parked at a rest stop. He noticed a Chevrolet Suburban with five passengers on the highway, which seemed to get alongside a pick up truck as it passed by. The Suburban had California licence plates. When the agent drove onto the highway, the Suburban picked up its speed up to 90 miles per hour. When the agent caught up, the Suburban slowed down very quickly. The agent decelerated to maintain his position beside the Suburban, and tried to get the attention of the passengers. The passengers appeared nervous and did not acknowledge the agent. The agent stopped the Suburban.
The Court held that the agent had reasonable suspicion that the vehicle contained illegal aliens. The Court noted that the Suburban’s acceleration and deceleration were consistent with an attempt to evade, and, with the other evidence, gave rise to reasonable suspicion that the vehicle contained illegal aliens.

Aldrich: Masturbating on internet is "sexual contact"

In U.S. v. Aldrich, No. 08-15556 (April 27, 2009), the Court held that the "sexual contact" sentence enhancement of USSG § 2G2.1(b)(2)(A) includes the act of masturbating on the internet. The Court explained that the guideline definition of "contact" refers to contact with "any person" – which includes the defendant.

Carter: Reasonable Suspicion Suffices to Search Probationer's Home Without Warrant

In U.S. v. Carter, No. 08-14460 (April 27, 2009), the Court held that "reasonable suspicion" sufficed to justify a warrantless search of the home of a probationer.
Carter was serving probation after arrests for battery and possession of cocaine. Carter’s probation officer became suspicious that Carter was engaging in drug trafficking after noticing changes in Carter’s lifestyle (despite a meager income), his association with a person with a criminal record, and his apparent gang affiliation. The officer searched Carter’s home and found evidence that led to Carter’s prosecution for crack cocaine trafficking and gun possession.
Citing the balancing test of U.S. v. Knights, 534 U.S. 112 (2001), the Court held that reasonable suspicion for the search sufficed under the Fourth Amendment. The Court noted Carter’s diminished privacy interest as a probationer. The Court further noted the government’s interest in monitoring a probationer, because of his propensity to commit more crimes. The Court recognized that the conditions of Carter’s probation did not authorize warrantless searches. Nevertheless, on balance, the search of Carter’s home based on reasonable suspicion was reasonable under the Fourth Amendment.
The Court found that the facts supported the probation officer’s reasonable suspicion, noting that Carter "appeared to live well beyond his means."

Schultz: Magistrate Judge can decide self-representation

In U.S. v. Schultz, No. 06-11673 (April 22, 2009), the Court affirmed fraud convictions and dismissed the defendant’s appeal in part for lack of jurisdiction.
The Court found no error in having a Magistrate Judge, as opposed to an Article III district court, decide Schultz’s Faretta motion for self-representation.
The Court noted that it lacked appellate jurisdiction to review the rulings of a Magistrate Judge, and therefore could not review Schultz’ challenge to the Magistrate Judge’s order denying self-representation. The Court noted that Schultz’ attorney orally objected at the commencement of trial in the district court to the lack of self-representation, and that the district court ruled "denied." However, the Court noted that Schultz’ oral motion did not alert the district court to the Magistrate Judge’s order. The Court rejected Schultz’s argument that the Magistrate Judge failed to inform him of the 10-day deadline for filing objections. The Court pointed out that the 10-day deadline notice requirement applies to reports and recomendations, not to pre-trial orders, and, further, was not yet in effect at the time of Schultz’ proceedings prior to September 2005.

Mitchell: unreasonable 21-day delay in seeking warrant to search hard drive

In U.S. v. Mitchell, No. 08-10791 (April 22, 2009), the Court reversed the denial of a motion to suppress, holding that the 21-day delay between the seizure of a computer hard drive and obtaining a warrant to search the hard drive constituted an unreasonable delay, in violation of the Fourth Amendment’s warrant requirement.
The government’s justification for the 21-day delay was that the agent who seized the hard drive was away from the office on a two-week training session, and saw no urgency to search the hard drive because the defendant had admitted that it contained child pornography images. Rejecting this position, the Court noted that individuals are dependent on their hard drives for a number of essential tasks in their lives, and they contain a universe of personal information. Further, the justification for the delay was not adequate, because another agent could have done the forensic search of the hard drive while the agent was away for training. The Court noted that its finding was specific to the circumstances of the case.

Covington: 404(b) admissible in murder for hire

In U.S. v. Covington, No. 08-10513 (April 22, 2009), the Court affirmed the convictions and sentence of a defendant charged with having hired a murderer to kill a girlfriend.
Covington was arrested and charged with assaulting his girlfriend. He allegedly hired a hitman to murder his girlfriend to avoid having her testify against him.
The Court found no abuse of discretion under FRE 404(b) and 403 in the admission of communications Covington had from jail with his ex-girlfriend, of a description of his prior assault, and of the gun he used in the prior assault. The Court recognized that prior domestic abuse evidence can be irrelevant and prejudicial in a narcotics prosecution. Here, however, this evidence was relevant to Covington’s motive to hire someone to kill his girlfriend. The motive was to silence the girlfriend.
The Court found a sufficient interstate nexus in Covington’s use the telephones because he called across state line to discuss the scheme. The FBI did not contrive to create an interstate nexus.
The Court further found an adequate agreement of payment for murder where Covington wired $300 that eventually reached his intended hit man. In addition, negotiations mentioned payment of six kilos of cocaine.
The Court affirmed the 40-year sentence. The Court rejected the argument that a prior conviction was constitutionally invalid and therefore should not have been counted at sentencing. The Court noted that Custis v. U.S. precluded the kind of challenge Covington raised. In addition, his guilty plea to a firearm in possession count amounted to an express admission that § 924(e) applied to him.
The Court rejected an improper "grouping" challenge. The Court noted that the two murder for hire counts should not have been grouped with the felon in possession of a firearm count, because the two offenses involved a different victim. The girlfriend was the victim of the two murder for hire offenses, while "society as a whole" is considered the victim of a felon in possession offense. Moreover, the motives were different. The murder for hire scheme intended to keep the girlfriend from testifying; Covington did not yet want her dead at the time of his pistol-waving assault. Finally, the Court found it reasonable for the sentencing court to run Covington’s sentences consecutively, and to impose the resulting 420-month sentence.

Lopez-Garcia: No Interrogation where interrogator would not have known of incriminating possibility

In U.S. v. Lopez-Garcia, No. 08-12662 (April 21, 2009), the Court affirmed the conviction and sentence of a defendant for having been unlawfully found in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2).
The Court rejected the argument that incriminating statements he gave were tainted as the "fruit of the poisonous tree" because they resulted from his initial seizure in violation of the Fourth Amendment. The Court found no Fourth Amendment violation. The police officer had reasonable suspicion to stop Lopez-Garcia’s vehicle based on its observation that he seemed to have been engaging in a drug transaction. [In a footnote, the Court noted that the government had not demonstrated that the "particular circumstances" showed a violation of the Georgia traffic code, and thus a traffic violation alone did not justify the stop]. The Court also found that probable cause supported Lopez-Garcia’s arrest, because the consensual search of the vehicle uncovered a drug substance and paraphernalia. The Court added that even if there had been a Fourth Amendment violation, the statements Lopez-Garcia later gave were "too attenuated from his arrest to be regarded as fruit of the poisonous tree." The statements were made the day after the arrest. The arrest and the questioning were conducted by different individuals. The arrest was not motivated by the ulterior purpose to determine Lopez-Garcia’s immigration status.
The Court also rejected the argument that Miranda required suppression of the statements. The parties did not dispute that Lopez-Garcia was in "custody." However, the Court found that no "interrogation" occurred, because the law enforcement agent who questioned Lopez-Garcia would not have reasonably known that his questions would elicit a self-incriminating statement. The questioner was not aware that Lopez-Garcia had previously been deported, nor that he had entered the country illegally. Therefore, he would not have thought it "especially likely" that Lopez-Garcia would confess to having re-entered the country illegally.
The Court further rejected the argument that the "fruit of the poisonous tree" doctrine required suppression of a second Mirandized confession Lopez-Garcia gave 10 days after his first confession. These later statements were "far too attenuated" from the earlier ones to have been tainted by them. In addition, the Court rejected a Missouri v. Seibert challenge to the second confession, finding that the absence of Miranda warnings in a first interview was not purposeful, but merely reflected the fact that the interrogator did not anticipate that his questions would result in self-incriminating statements.
The Court rejected the argument that Lopez-Garcia’s immigration files should have been suppressed. The Court again found the "fruit of the poisonous tree" doctrine inapplicable. It also noted that identification information is not excludable, citing its recent decision in U.S. v. Farias-Gonzalez (identity evidence not subject to exclusionary rule).
Turning to sentencing, the Court affirmed the imposition of a 16-level sentence enhancement based on a prior conviction for a felony firearms offense under Georgia law. The Court found that the Georgia offense was the equivalent of an 18 U.S.C. § 924(c) violation. The Court noted that the nexus of the firearm to a drug trafficking offense in Lopez-Garcia’s firearm offense would have satisfied the "possession" prong of the § 924(c) offense. The Court rejected Lopez-Garcia’s U.S. v. Shepard challenge to the district court’s fact-finding on this point, noting that the district court relied on the PSI, and the PSI information regarding the prior Georgia offense’s nexus to drug trafficking was undisputed. Without deciding whether reliance on a PSI is always justified, the Court, citing U.S. v. Hedges, noted that when statements in a PSI are undisputed, a sentencing court is permitted to rely on them despite the absence of supporting evidence.

Emmanuel: Fourth Amendment does not reach Bahamas

In U.S. v. Emmanuel, No. 07-10378 (April 21, 2009), the Court affirmed drug trafficking convictions.
The Court rejected the argument that a wiretap of the defendants under Bahamian law so "shocked the conscience" as to warrant suppression of its fruits, because no neutral magistrate need approve the wiretap. The Court noted that the "shock the judicial conscience" standard is meant to protect against conduct that violates "fundamental international norms of decency." Fundamental international norms of decency do not require judicial review in all jurisdictions of applications to intercept wire communications. Therefore, the Bahamian wiretap is not excludable.
The Court also rejected the argument that the United States so involved itself with the Bahamian government in the wiretap that the Fourth Amendment applied. The Court noted that Emmanual was a nonresident alien entirely outside the United States. The Fourth Amendment therefore could not apply, regardless of United States involvement. The Court distinguished U.S.v. Behety, on the ground that it involved a resident alien and a U.S. citizen. The Fourth Amendment exclusionary rule does not apply to the interception of wire communications in the Bahamas of a Bahamian resident.
The Court rejected hearsay and Confrontation Clause challenges to the admission at trial of the Bahamian government’s approval of the wiretap, finding that admission of this evidence, even if error, did not substantially affect the trial.
The Court also found no prejudice in the district court’s admission of police officer testimony that he recognized the defendant’s voice from having heard it at the defendant’s condition of bail hearing. The comment was a brief reference during a relatively long trial.
The government offered a police officer as an expert to interpret drug codes and jargon used in taped conversations. The Court rejected Emmanuel’s Rule 702 challenge to this testimony, finding that drug codes and jargon are proper subjects of expert testimony. The Court recognized that such testimony "may unfairly provide the government with an additional summation by having the expert interpret the evidence, and may come dangerously close to invading the province of the jury. Here,"most" of the testimony "was specific and closely related to [the] interpretation of drug codes and jargon." But "some" of the testimony "went beyond interpreting code words to interpret conversations as a whole." Nevertheless, it was unlikely this affected Emmanuel’s substantial rights, because the judge emphasized that the jury will determine whether the testimony is credible. In addition, based on Emmanuel’s own incriminating statements on tape, the jury "could have easily interpreted the coded conversations as involving drugs based on other evidence in the case, including actual seizures of drugs and drug money and testimony from coconspirators." Any error, therefore, did not require reversal.

Parker: No Purposeful Discrimination in Peremptory Strikes

In Parker v. Allen, No. 05-16907 (April 20, 2009), the Court affirmed the denial of habeas relief to an Alabama inmate convicted of a 1988 murder.
The Court rejected Parker’s Batson challenge to the peremptory strikes used against black venirepersons. The Court noted that the Alabama courts had considered this claim, and found no error in a finding of an absence of "purposeful discrimination."
The Court also rejected Parker’s argument based on the prosecutor’s improper vouching for prosecution witnesses in closing arguments. The Court noted that the Alabama courts had found the improper vouching occurred, but that this vouching did not materially affect the trial. This conclusion was not unreasonable.
The Court also found that the Alabama courts were not unreasonable in rejecting Parker’s Brady claim. Parker argued that the prosecution should have disclosed the criminal history record of one of its witnesses. The Court noted that the convictions were a matter of public record that Parker could have uncovered. Further, the jury heard about some of the witnesses prior convictions.
The Court rejected Parker’s ineffective assistance of counsel claims. Counsel were not ineffective for failing to present evidence that Parker was drug or alcohol impaired when he made a statement to police, because Parker was in fact cognizant of the situation. Counsel were not ineffective in failing to present evidence regarding the murder weapon; additional evidence would have been cumulative. Counsel were not ineffective in failing to present additional evidence of the absence of probable cause for Parker’s arrest, because Parker was not prejudiced by not having this additional evidence presented.

Beckles: Undisputed PSI sawed-off shotgun establishes crime of violence

In U.S. v. Beckles, No. 07-15062 (April 17, 2009), the Court affirmed a conviction and sentence for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g).
The Court rejected Beckles’ argument that his confession was obtained in violation of Miranda. The Court noted that the district court chose to credit the account of the FBI agent, rather than that of Beckles, regarding the voluntariness of Beckles’ waiver of his Miranda rights, and made "detailed credibility determinations" in support of its finding.
The Court also rejected Beckles’ challenge to the sufficiency of the evidence: a shotgun was found under a mattress, concealed in a location Beckles knew, in an apartment at which he resided, and the shotgun did not belong to anyone else.
The Court rejected the argument that, for purposes of determining whether Beckles’ firearm possession offense was a "crime of violence," the district court was not permitted to look outside the statute of conviction to see whether the firearm in question was a sawed-off shotgun, and therefore so qualified the firearm possession offense under career offender guidelines. The Court noted that if ambiguities in a judgment make the crime of violence determination impossible from the fact of the judgment, the district court is authorized to find additional facts, based on charging documents, written plea agreements, transcripts of plea colloquies, and any explicit factual finding made by the sentencing court. Here, the PSI’s stated that the firearm Beckles possessed was a sawed-off shotgun, and this statement was undisputed. The district court did not err in relying on this undisputed fact. Further, even if error occurred, it would not have affected the defendant’s substantial rights because the defendant failed to proffer evidence that the firearm was anything else than a qualifying sawed-off shotgun.

Davis: AEDPA bars "actual innocence" claim of death row inmate

In In Re Davis, No. 08-16009 (11th Cir. 2009) (2-1, Barkett, J. dissenting), the Court held that Davis failed to meet the statutory requirements of AEDPA for a second or successive habeas petition, and affirmed the district court’s dismissal of his petition that challenged his death sentence for a 1989 murder.
In his first federal habeas petition, Davis asserted "actual innocence" as a gateway to present otherwise defaulted constitutional challenges to his Georgia state conviction. After this first petition was denied, Davis brought a second petition, which asserted "actual innocence" as a stand-alone basis for relief, relying on witness recantations and evidence pointing to another culprit.
The Court noted that, under AEDPA, the factual predicate for a second or successive petition "could not have been discovered previously." Here, Davis was aware of the factual predicate – except for one new affidavit, which the Court found insufficient to negate the evidence supporting the jury’s verdict of guilt. The Court noted that AEDPA does not provide that actual innocence claims, standing alone, can support a second habeas petition: the statute requires a showing of a constitutional violation as well. Further, even if the statute allowed such claims, here Davis’ evidence did not suffice to establish, as the statute required, that "no reasonable fact-finder would have found the applicant guilty." The Court noted that "recantations are viewed with extreme suspicion by the courts."

Kimbrough: Strategic decision not ineffective assistance

In Kimbrough v. Secretary, DOC, No. 08-11421 (April 13, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death in 1994.
The Court rejected the argument that trial counsel was ineffective for failing to present mental health mitigating evidence at the sentencing phase. The Court noted trial counsel’s strategic decision not to present such evidence because it would have opened the door to admission to the admission of more damaging information.

Webb: No 3582 crack reduction where no change in original sentencing range

In U.S. v. Webb, No. 08-13405 (April 13, 2009) (Birch, Marcus, Anderson), the Court held that a crack cocaine offender was not eligible for a 2-level sentence reduction pursuant to Guideline Amendment 706 and 18 U.S.C. § 3582(c)(2). The Court also held that defendants are entitled to representation by counsel in § 3582(c)(2) proceedings only at the court’s discretion, and not as a matter of right.
Webb was originally sentenced pre-Booker, and given a career offender guideline level. This sentence was subsequently twice reduced based on the government’s filing of Rule 35(b) substantial assistance motions. Webb filed a § 3582(c)(2) motion to further reduce his sentence based on the 2-level crack cocaine Guideline Amendment. The district court denied this motion, reasoning that if Webb’s sentence were reduced two-levels from the original level 42 to level 40, under the career offender Guideline, his sentencing range would be unchanged at 360 months to life.
The Court affirmed. The Court noted that § 3582(c)(2) only provides for reductions when a Guideline amendment has reduced the "sentencing range." Here the sentencing range did not change. Further, Booker is inapplicable to § 3582(c)(2) motions, because it is a Supreme Court decision, not a retroactively applicable guideline amendment by the Sentencing Commission. The district court therefore did not err in refusing to use Booker as a basis for a sentence reduction.
The Court joined all other circuits to have considered the issue to rule that a defendant is not constitutionally or statutorily entitled to counsel in a § 3582(c)(2) sentence reduction proceeding. The proceeding "is simply a vehicle through which appropriately sentenced prisoners can urge the court to exercise leniency to give certain defendants the benefits of an amendment to the Guidelines." The Court noted that a defendant has no right to be present at a § 3582(c)(2) proceeding. Further, a § 3582(c)(2) proceeding does not qualify as an "ancillary" matter under 18 U.S.C. § 3006A(c). Consequently, the district court did not abuse its discretion in not appointing counsel for Webb.

Jimenez: No Confrontation Clause plain error in brother's statement

In U.S. v. Jimenez, No. 08-14192 (April 7, 2009), the Court affirmed marijuana trafficking convictions.
The trial court admitted the testimony of a detective, that, before resuming the questioning of Jimenez inside the marijuana grow house where Jimenez was arrested, he went over to the defendant’s brother in the grow house, and the brother said that Jimenez was living with him and helping him with the marijuana plants. On appeal, Jimenez claimed that the admission of this out-of-court statement violated his Confrontation Clause rights. The Court rejected this argument, noting that in the trial court Jimenez had only objected on hearsay, not Confrontation Clause, grounds. Thus, the issue was reviewed for "plain error."
In addition, the statement was admissible as non-hearsay, because it was admitted not for its truth, but to show why the detective then resumed his questioning of Jimenez. The prejudicial impact of the admission statement that Jimenez was helping to grow marijuana was "minimal" in light of the "abundance of physical evidence," and in light of Jimenez’ unambiguous confession that he had participated in the marijuana grow operation.

Irey: Sex Offender 100-month downward Variance Reasonable

In U.S. v. Irey, No. 08-10997 (March 30, 2009), the Court rejected a government appeal of a 240-month sentence imposed on a defendant convicted of using minors to engage in sexually explicit conduct outside the United States for the purpose of producing visual depictions of such conduct and transporting the images to the United States.
The sentencing judge described the conduct as "horrific." The Guideline sentence was 360 months. The statutory maximum was also 360 months; the minimum was 180 months. The district court correctly computed the guideline sentence, and directly discussed the § 3553(a) factors on the record.
Affirming the sentence, the court noted that a 17-1/2 year sentence was not "a trifle." Further, the defendant was 50; thus the consequences of the sentence were "severe." A life term of "rigorous" supervised release was imposed. The sentence was "years beyond" the statutory minimum. The Court stated: "If we were responsible for sentencing Defendant in the first instance, we might have imposed a different sentence: we clearly believe that sentences other than the one actually imposed might also be appropriate. But we must respect the district court as the sentencer, and we accept that the sentence imposed by the district court is within the outside borders of reasonable sentences for this case. . . . The sentence must be affirmed."

Seher: Money Laundering mens rea implicit in indictment

In U.S. v. Seher, No. 07-13935 (March 26, 2009), the Court affirmed money laundering convictions but vacated the forfeiture judgment, in a case arising out of the use of jewelry stores in Atlanta to launder cocaine trafficking cash proceeds.
The Court rejected the argument that the indictment failed to charge the requisite mens rea for the money laundering offenses. The Court noted that the indictment cited specific subsections of the money laundering statutes. These subsections, in turn, contained mens rea elements. Thus, it was reasonable to infer that the grand jury found that the defendants had the intents to violate the laws.
The Court also rejected a duplicitous indictment challenge. The defendants argued that 18 U.S.C. § 1956(a)(3) contains three different offenses. Consequently, when certain counts of the indictment referenced different subsections of the same statute, they charged two different offenses in the same count. Although the defendants waived this challenge by failing to raise it pre-trial, the government itself waived the waiver on appeal, and the Court therefore considered the argument. The Court concluded that § 1956(a)(3) did not create separate offenses, but listed alternative mental states for a single offense.
Turning to the forfeiture order, the Court rejected the argument that the assets of the jewelry stores, and their bank accounts, should not have been forfeited, because they were not "involved" in the money laundering offenses. The Court found that one of the businesses was a "facade of legitimacy" for the money laundering enterprise. The other jewelry business, however, was unconnected to the unlawful laundering.
Finally, the Court that the record below was insufficient to determine whether the forfeiture of the jewelry business was an excessive fine in violation of the Eighth Amendment. The Court therefore remanded the entire forfeiture order for reconsideration of this issue.

Williams: Life Sentence Affirmed

In U.S. v. Williams, No. 08-10185 (March 31, 2009), the Court affirmed the district court’s re-imposition of a life sentence.
In a prior appeal, the Court had vacated the life sentence because the district court failed to give a reason for imposing a life sentence. Upon remand, the district court provided reasons.
The Court noted that its limited mandate precluded the district court from re-examining the life sentence based on new considerations. The Court recognized that one exception to the mandate rule involved intervening changes in the law. Here, one prior conviction that qualified Williams as a "career offender" was a Florida state conviction for battery of a law enforcement. The Florida Supreme Court recently held that this offense was not a "forcible felony." Further, the Court’s precedent which held that federal, not state, law governs for career offender purposes is now up for review in the United States Supreme Court. Yet neither of these recent developments constituted an intervening change in law.

Bornscheuer: Extortion includes fear of economic loss

In U.S. v. Bornscheuer, No. 06-14607 (March 31, 2009), the Court affirmed Hobbs Act convictions arising out of extortion.
The Court rejected the argument that the "fear" that underlies an extortion conviction must relate only to fear of physical violence, not, as the jury was instructed to fear "of economic loss as well as fear of physical violence." The Court said both types of fears were contemplated by its precedent in U.S. v. Grassi, 783 F.2d 1572 (11th Cir. 1986).
The Court also rejected Confrontation Clause challenge to the admission of out-of-court statements, pointing out that the statement in question fell within the hearsay exception for a statement of a co-conspirator made in furtherance of a conspiracy.

McGahee: Batson violation warrants habeas relief

In McGahee v. Alabama Dep’t of Corrections, No. 07-15602 (March 4, 2009), the Court granted a writ of habeas corpus to an Alabama death row inmate, finding that Alabama violated Batson v. Kentucky by using its peremptory strikes in a discriminatory manner at his trial for 1986 murders.
The Court found that the Alabama trial court, and the Alabama Court of Criminal Appeals, failed to properly apply Batson. The record indicated that one black juror had been struck because the State "did not want to leave him individually," a remark the Court interpreted as being because of the juror’s race. In addition, all black members of the venire were struck by the State, either for cause, or by the use of peremptory challenges. "There can be no clearer ‘pattern’ than the total removal of all African-American jurors from the venire by the State." Further, the State attempted to justify striking multiple African-American jurors because of their "low intelligence." There was no support for this finding in the record. "Furthermore, the State’s claim that several African-Americans were of ‘low intelligence’ is a particularly suspicious explanation given the role that the claim of ‘low intelligence’ has played in the history of racial discrimination from juries."
The Court called the removal of all African-American jurors from the venire "astounding." The Court found that race was a basis for striking specific black members of the venire, and a Batson violation therefore occurred.

Willis: FEMA fraud sentenced up to maximum disbursement

In U.S. v. Willis, No. 08-10305 (March 3, 2009), the Court affirmed the Guideline loss amount imputed to a defendant convicted of defrauding FEMA by seeking fraudulent post-Hurricane Katrina aid.
Under the FEMA program, an applicant Hurricane victim was entitled to $4,358 automatically. The applicant could exceed this amount by making specific application therefor. The maximum aid amount was $26,200 per application.
Willis submitted numerous fraudulent applications, some in excess of the $4,358 automatic payment. Remarkably, she submitted one application after being indicted on for the fraud. The sentencing court held Willis accountable for $26,200, the maximum possible harm, for each FEMA application she submitted.
Rejecting Willis’ challenge to this determination, the Court held that Willis’ pattern of applying for funds beyond the $4,358 automatic disbursement supported an inference that she intended to pursue additional money from her other applications, and eventually intended to pursue the maximum disbursement for each application.

Carmichael: Jury Pool Ok in Middle District of Alabama

In U.S. v. Carmichael, No. 07-11400 (March 5, 2009), the Court rejected the defendant’s challenge to the validity of his Alabama jury venire.
The Court recognized that as a result of errors and technical glitches, the Jury Administrator re-summoned more than 15% of previously deferred jurors, a court-imposed limit that was designed to prevent jury venires from being disproportionately white. However, these deferred jurors were not given a preferential position but were selected at random for venires. Thus, the violation was not substantial.
The Court also rejected a challenge to the voter list-based jury pool under the Jury Selection and Service Act, finding no requirement in this Act for voter list supplementation when they result in over- or under-representation of certain groups.
Finally, the Court rejected Carmichael’s Sixth Amendment "fair cross-section" challenge to the jury pool, finding that he had failed to establish a disparity of 10% or more between eligible and actual African American jurors in the local population.

Ambert: SORNA is constitutional

In U.S. v. Ambert, No. 08-13139 (March 6, 2009), the Court rejected a defendant’s challenge to his conviction for failing to register under the Sex Offender Registration and Notification Act ("SORNA").
The Court rejected Ambert’s argument that his travel in interstate commerce occurred before the Attorney General determined that SORNA’s registration requirements applied on February 28, 2007 to previously convicted sex offenders, and therefore did not subject him to criminal liability for failing to register. First, he also traveled after February 28. Second, the violation consists of a failure to register, which accrued after February 28.
The Court rejected an ex post facto challenge to the SORNA statute, noting that the registration violation occurs after the effective date of the Attorney General’s retroactivity determination.
The Court also rejected a substantive due process to the SORNA statute, finding that strict scrutiny did not apply because the right of a person convicted of sex offenses to refuse registration was not deeply rooted in the Nation’s history, and, applying rational basis scrutiny, the registration requirement was reasonably related to the goal of protecting the public from recidivist sex offenders.
Overruling the district court decision in U.S. v. Myers, the Court rejected a Commerce Clause challenge. The Court found that "when a sex offender travels from one state to another, he is an instrumentality of interstate commerce, and by regulating these persons in SORNA, Congress has acted under its commerce clause power to regulate an instrumentality."
Finally, the Court rejected a non-delegation challenge, finding that Congress laid down an adequate "intelligible principle" to guide the Attorney General’s retroactivity determination for SORNA violators.

Siegelman: Governor's Bribery Convictions Affirmed

In U.S. v. Siegelman, No. 07-13163 (March 6, 2009), in a lengthy opinion, the Court reversed two bribery-related convictions of the former Governor of Alabama, but otherwise affirmed other convictions.
The Court rejected Siegelman’s argument that a jury instruction on bribery, in violation of 18 U.S.C. § 666(a)(1)(B), should instruct that the quid pro quo agreement must be express. The Court noted that the caselaw merely requires an "explicit" agreement, which can be achieved through winks and nods, if not through express words. Furthermore, an agreement can be implied from words and actions.
The Court also rejected Siegelman’s argument that there was insufficient evidence to support the bribery convictions, finding that the jury could have concluded that a quid pro quo existed to put Richard Scrushy on the Board of a Health Review Board in exchange for his money contribution to one of the Governor’s foundations.
The Court agreed with Siegelman’s argument that he should not have been convicted of honest services mail fraud based on Scrushy’s self-dealing once Scrushy became a Board member. The Court noted Siegelman’s lack of involvement in Scrushy’s self-dealing, or any agreement between the two on this point.
Citing U.S. v. Ramirez, 324 F.3d 1225 (11th Cir. 2003), the Court rejected Siegelman’s statute of limitations challenge, noting that he failed to raise until a motion for judgment of acquittal under Fed. R. Crim. P. 29(c), post-verdict. If a defendant fails to raise the statute of limitations defense at trial, the defense is waived.
The Court rejected the argument that a statement of a co-conspirator bragging about the successful result of the bribery could be admitted under Fed. R. Evid. 801(d)(2)(E). Bragging informs co-conspirators that "their plan had worked."
The Court rejected new trial arguments based on juror misconduct in having looked at news articles and materials on the internet. The trial court conducted a hearing on this matter and determined that the extrinsic materials related only to the process of deliberation, not the substantive issues in the trial. There was no reasonable possibility of prejudice. The Court reached a similar conclusion regarding jury exposure to an unredacted second superseding indictment. The Court rejected other challenges to improper premature communications among the jury during deliberations, noting that Fed. R. Evid. 606(b) shields jurors from such post-trial inquiries.
Finally, the court; affirmed an upward sentencing departure based on the fact that the Governor's conduct had seriously undermined public confidence in the executive Branch of Alabama government.

Shaw: Variance to Statutory Maximum Not Unreasonable

In U.S. v. Shaw, No. 07-14693 (Mar. 3, 2009), the Court affirmed an upward variance from a guideline range of 30-37 months to the statutory maximum of 120 months, for an offender convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The Court agreed with the district court’s assessment that, in light of Shaw’s past criminal history, he was "just a step or two away from violent crime." "The public should not wait until he takes those last steps before the district court can provide it with the maximum protection the law allows."
The Court rejected the argument that the district court failed to support its prediction of Shaw’ future violence with any "empirical" study. The Court noted that district courts have "wide latitude" in applying what they have learned from other cases. Here, moreover, Shaw was arrested with ski masks in his possession, headed toward a drug hole to rob it, vindicating the district court’s assessment. The Court also rejected Shaw’s reliance on lesser punishments imposed in like cases.

Guzman: ok to require address in Mexico on supervised release

In U.S. v. Guzman, No. 08-14077 (Feb. 18, 2009), the Court held that the district court did not exceed its authority when it imposed a special condition of supervised release, requiring Guzman to inform the probation officer in writing of his address in Mexico within 72 hours of his deportation from the United States. The Court found that the purpose of such a condition fell within the purposes of 18 U.S.C. § 3553(a). "Ensuring that Guzman remained in Mexico was strongly related to his unlawful re-entry offense, was specifically designed to deter him from unlawfully re-entering again, and, in this respect, would help protect the public from any future attempt by Guzman to unlawfully re-enter the country."

Harrision: Fleeing Police Lights & Siren not "Violent Felony"

In U.S. v. Harrison, No. 08-12636 (Feb. 19, 2009), the Court (Hull, Wilson, Hill, JJ.) held that a violation of subsection 2 of Florida’s willful fleeing statute, Fla. Stat. § 316.1935(2) is not a "violent felony" for purposes of the 15-year mandatory minimum of 18 U.S.C. § 924(e), applicable to offenders who are convicted under 18 U.S.C. § 922(g) of being felons in unlawful possession of a firearm and who have three prior convictions for violent felonies.
The Court discussed at length how the Supreme Court’s decisions in Begay, James and Chambers had changed the legal landscape. The Court noted that Chambers has already spawned a reconsideration of circuit precedent involving escape crimes.
The Court emphasized that subsection 2 of the Florida statute – unlike subsection 3 – did not contemplate that the offender had any wanton disregard for the safety of persons. Rather, it only involved fleeing after a police vehicle had activated its lights and sirens. This kind of offender did not have the propensity for future violent conduct that the statute contemplated when it triggered a 15-year minimum for those who have three prior "violent felonies."

Vasquez: No Authority to Vary from Career Offender Guidelines

In U.S. v. Vasquez, No. 08-10671 (Feb. 12, 2009), the Court held that a sentencing court lacks the authority to vary from the Guidelines’ career offender provision on the ground of a "disagreement" with this Guideline.
The Court first held that the appeal waiver provision of Vasquez’ plea agreement did not waive his appeal of his sentence. The provision provided that there was no waiver if the government appealed the sentence. The government did appeal Vasquez’ original sentence, but not the second sentence imposed on resentencing. Viewing the appeal waiver provision as ambiguous in this situation, the Court decided it did not operate to waive Vasquez’ appeal.
The Court noted that its prior decision in U.S. v. Williams, 456 F.3d 1353 (11th Cir. 2006) held that the career offender Guidelines "encapsulate" the congressional policy articulated in 28 U.S.C. § 994(h). Thus, it was impermissible for a sentencing court to vary from the career offender guidelines. Williams also held that it was impermissible to depart from the crack offender guidelines, and this portion of Williams was overruled by Kimbrough. But Kimbrough, stated that crack guidelines were different from career offender guidelines, because the career offender guidelines arose out of a separate statute. Therefore, the career offender portion of Williams remained binding law in the Eleventh Circuit. The Court relied on U.S. v. Vega-Castillo, 540 F.3d 1235 (11th Cir. 2008) (2-1, Barkett, J., dissenting), which had held that the fast-track program disparity issue was unaffected by Kimbrough.
[Vasquez appears to conflict with U.S. v. Sanchez, 517 F.3d 651 (2d Cir. 2008), which held that a district court has authority to vary from the career offender guidelines].

Williams: Failure to file anything with Magistrate Judge can be fatal

In Williams v. McNeil, No. 08-11259 (Feb. 10, 2009), the Court affirmed the denial of habeas relief. After the issue of the timeliness of his habeas petition was assigned to a Magistrate Judge, Williams neglected to file any memorandum on this issue with the Magistrate Judge. The Magistrate Issue ruled that McNeil’s petition was untimely. Williams then sought to challenge this ruling in the district court. The district court declined to reach Williams’ arguments, because he had failed to brief the issue before the Magistrate Judge. The district court denied habeas relief.
Affirming, the Court of Appeals joined the majority of circuits to have considered the issue, and ruled that when a party fails to brief an issue before a Magistrate Judge, the district court has the discretion to simply adopt the Magistrate Judge’s report and recommendation on the basis of this waiver.

Williams: 3582(c)(2) judgment reversed for failure to consider 3553(a) factors

In U.S. v. Williams, No. 08-11361 (Feb. 9, 2009), the Court reversed the denial of an 18 U.S.C. § 3582(c)(2) sentence reduction to a Georgia crack cocaine offender, because the district court at resentencing, in reducing sentence by less than the two-level offense level reduction authorized by the crack cocaine sentence reduction Amendment, failed to address the 18 U.S.C. § 3553(a) factors. The Court noted that the Guideline commentary required the Court to consider the factors in § 3553(a). So did Eleventh Circuit precedent. Accordingly, the Court vacated the judgment and remanded for resentencing.

Tompkins: No Certificate of Appealability for Death-Row Inmate

In Tompkins v. Sec., Dep’t of Corrections, No. 09-10022 (Feb. 9, 2009), the Court denied habeas relief to a Florida inmate sentenced to death for a 25-year old murder.
Tompkins argued that his latest § 2254 motion should not be considered "second or successive," and should therefore not require a certificate of appealability, because Panetti v. Quaterman’s 2007 holding that a death-row inmate’s claim that he was incompetent for execution did not trigger the "second or successive" bar, because this claim was not ripe until the inmate was subject to execution. Tompkins sought to extent Panetti to situations, like his, where a habeas claim rested on evidence that was newly discovered after trial but before execution. The Court rejected this argument. The Court noted that the statute expressly provides for "newly discovered" evidence claims. Consequently, Tompkins did not qualify for a certificate of appealability
The Court also rejected the argument that Tompkins’ claim that his execution was cruel and unusual because the length of his stay on death row. The Court noted that Circuit precedent squarely foreclosed such an Eight Amendment claim. Therefore no certificate of appealability could issue on this claim too.

Whisenant: No Actual Bias of Judge

In Whisenhant v. Allen, No. 04-15810 (Feb. 3, 2009), the Court affirmed the denial of habeas relief to an Alabama death row inmate convicted of a 1976 murder.
The Court rejected the argument that counsel was ineffective for failing to present an insanity defense. In the circumstances, counsel made a "strategic" choice.
The Court also rejected the argument that a Brady violation occurred, concluding that the suppressed documents were not material. The Court noted that the marginal value added of the reports at issue was insufficient.
The Court further rejected a claim of prosecutorial misconduct, finding that the closing argument did not misrepresent the testimony.
The Court also rejected claims of actual bias on the part of the state judge who presided over the trial.

Farias-Gonzalez: Identity Not Suppressible

In U.S. v. Farias-Gonzalez, No. 08-10508 (Feb. 3, 2009), the Court held that "identity-related evidence," i.e., evidence of who the defendant is, obtained after an unconstitutional search and seizure, is not suppressible in a criminal prosecution.
The Court assumed arguendo that a Fourth Amendment violation occurred when the defendant was told to lift his shirt, revealing identifying gang marks. The Court noted, however, that applying the cost-benefit analysis of the exclusionary rule, the exclusion of identity-related evidence is not justified, because the deterrence benefits do not outweigh the social costs.
Permitting a defendant to hide who he is would undermine the administration of the criminal justice system, and preclude sentence enhancements based on prior criminal history. Moreover, the deterrent effect of preclusion is minimal, because there is little point in deterring the police from asking a suspect to identify himself, and the identity evidence can be obtained by other means, that is, without implicating the Fourth Amendment. For the same reason, the Court denied the defendant’s motion to suppress his alien file.

Pace: Failure to Investigate Crack Addiction Not Ineffective

In Pace v. McNeil, No. 07-15528 (Feb. 3, 2008), the Court affirmed the denial of habeas relief to a Florida death-row inmate convicted of a 1988 murder.
The Court rejected Pace’s claim of ineffective assistance of counsel. Pace claimed that counsel failed to adequately investigate Pace’s addiction to crack cocaine. The Court noted that Pace told defense counsel that he was not under the influence of crack cocaine at the time he committed the murder. Further, a "crack cocaine" defense was a double-edged sword.

Svete: Brown Overruled; Fraud Aimed at Gullible is Actionable

In U.S. v. Svete, No. 05-13809 (Feb. 2, 2009) (en banc), the Court, reversing U.S. v. Brown, 79 F.3d 1550 (11th Cir. 1996), held that proof of mail fraud does not require proof that a scheme is capable of deceiving a reasonably prudent person. Schemes aimed at the gullible or improvident are also prohibited.
The Court relied on the settled understanding of the reach of the mail fraud statute (which was broader than the common law fraud prohibition), on Neder v. U.S.’s discussion of materiality, and on the fact that Brown’s "ordinary prudence" element was rejected by all other circuits.
Consequently, the district court did not err when it declined to give the jury the requested Brown instruction regarding the requirement of ordinary prudence on the part of the victim. The Court upheld the fraud convictions.

Melvin: No discretion to reduce more than 2 levels for crack offenders

In U.S. v. Melvin, No. 08-13497 (Feb. 3, 2008) the Court held that sentencing courts are not authorized to grant a sentence reduction greater than the two-level reduction provided by the Sentencing Commission for crack cocaine offenders eligible under its Amendment 706.
The Court noted that the sentence reduction statute required sentence reductions to be consistent with the policy statements of the Commission. Here, the Commission’s policy statement limited the reduction to two levels. The Court rejected the argument that the policy statement was advisory, pointing out that sentence reduction proceedings are not full de novo sentencings. In addition, Booker did not excise § 3582(c)(2) when it made the guidelines advisory. Further, since the policy statement did not mandate a sentence reduction, it was not mandatory, and therefore could not run afoul of Booker. Finally, Kimbrough did not mention § 3582(c)(2), and therefore was inapplicable.

Dumont: SORNA criminalizes failure to register, not interstate travel

In U.S. v. Dumont, No. 08-11187 (Jan 26, 2009), the Court upheld a conviction for failing to register as a sex offender, as required by 18 U.S.C. § 2250(a) of SORNA.
On February 28, 2007, the Attorney General issued a rule stating that SORNA’s registration requirements applied retroactively. This required persons who had traveled in interstate commerce to update their registration. Dumont claimed that this registration requirement did not apply to him because he had traveled two weeks before the Attorney General made SORNA’s registration requirement retroactive.
The Court distinguished U.S. v. Madera, because that case involved a failure to register before the Attorney General’s retroactive rule. Here, Dumont was prosecuted for failing to register after the Attorney General issued his rule. The Court rejected Dumont’s argument that the law should not apply to him because his travel, which triggered the registration requirement, occurred before the Attorney General issued his rule. The statute does not criminalize travel. It criminalizes failure to register.

Magwood: AEPDA Bars Claim In 2nd Petition That Could Have Been Raised In First

In Magwood v. Culliver, No. 07-12208 (Jan. 23, 2009), the Court denied habeas relief to an Alabama inmate sentenced to death for a 1979 murder of a Sheriff.
Magwood claimed that at his Alabama resentencing, the retroactive application of an Alabama Supreme Court precedent interpreting its death penalty statute violated Due Process. The Court, however, found that the AEDPA barred Magwood from raising this claim in a "second or successive" habeas petition, because Magwood could have raised this claim in his first petition.
The Court also rejected Magwood’s ineffective assistance of counsel claim for failing to challenge the application of the Alabama Supreme Court precedent at his resentencing. At the time of the resentencing, the caselaw was adverse to Magwood, and it was not ineffective for counsel to fail to challenge the validity of this state caselaw.

Bennett: Lifting Mattress Not Unreasonable Search

In U.S. v. Bennett, No. 08-12352 (Jan. 21, 2009), the Court held that no Fourth Amendment violation occurred when police searched under a mattress at a suspect’s mother apartment.
The Court noted that, in the circumstances – e.g., Bennett had delivered a rent check to the landlord – the police reasonably believed that Bennett resided in his mother’s apartment.
Though recognizing it was a close question, the Court concluded that the police search under the mattress was not an unreasonable of the "grab area" of a suspect. Two teenagers were in the room, and police reasonably suspected that they were potentially dangerous because one might have been Bennett, a person known to be dangerous. The police had ordered the two teenagers, handcuffed, to sit on the bed in order to question them. Before questioning, the police shook the sheets and lifted the mattress in order to secure the area. "Although it may have been difficult to [grab the firearm under the mattress] while handcuffed, it is not impossible that the boys could have reached under the mattress for a weapon." The Court noted that precedent allowed police to reach beneath a mattress. "If there is a reason to search the edge of a mattress by touch, there is reason enough to lift it up."

Dodge: SORNA registration not required for emailing obscene materials

In U.S. v. Dodge, No. 08-10802 (Jan. 14, 2009) (2-1, Wilson, J., dissenting), the Court held that SORNA’s sex offender registration requirement did not apply to a defendant convicted of transferring obscene material to a minor, in violation of 18 U.S.C. § 1470, because this offense did not constitute a "sex offense against a minor" under 42 U.S.C. § 16911(7)(I).
The Court noted that any definition of "against" requires a concept of contact or opposition. Here, Dodge emailed obscene images of himself to individuals he took to be minors. This conduct lacked any element of unwanted sexual assault. Unlike a "flasher" there was no invasion of private space.

Betancourth: Subject Matter Jurisdiction Can't be Waived by Guilty Plea

In U.S. v. Betancourth, No. 07-14710 (Jan. 13, 2009), the Court held that a defendant cannot waive, by pleading guilty, an objection to the district court’s subject matter jurisdiction under the Maritime Drug Law Enforcement Law, 46 U.S.C. § 70501. However, the Court held that under the facts presented – certifications from the United States Department of State stating that the government of Ecuador had waived objection to the enforcement of United States law against the apprehended vessels – jurisdiction existed.

Dorsey: No Impermissible 5K1.1 refusal

In U.S. v. Dorsey, No. 06-16698 (Jan. 9, 2009), the Court, upon sua sponte reconsideration of its prior decision, vacated its prior opinion and substituted another, finding that there was sufficient corroborating information in affidavits supporting search warrants, and holding that the government did not unconstitutionally punish Dorsey when it refused to file a motion to reduce his sentence pursuant to 5K1.1 when he decided to trial on the charged drug trafficking offenses.
The Court pointed out that the government’s offer of a 5K1.1 substantial assistance motion was conditioned on Dorsey’s entry of a guilty plea. The offer was made in the context of a plea negotiation. Accordingly, the government’s subsequent refusal to file a 5K1.1 motion when Dorsey did not plead guilty was constitutionally permissible. In addition, the Court noted that Dorsey was aware that the government did not consider his prior assistance sufficient to warrant a 5K1.1 motion.

Gonzalez: No Plain Error in sentencing where court would have reached same result absent error

In U.S. v. Gonzalez, No. 08-10008 (Dec. 12, 2008), the Court rejected challenges to a sentence of 50-months for a defendant convicted of illegal re-entry.
The defendant argued that error occurred because the sentencing court relied on a since-amended Guideline, § 2B1.2(b)(1)(A)(ii), and treated a prior bank robbery as a basis for a 16-level sentence enhancement. Reviewing for "plain error," the Court noted that the amended guideline gave the sentencing court discretion to impose a 16-level enhancement based on this prior offense. Thus, even though the enhancement was no longer mandatory, the error was not plain because nothing in the record suggested that the court would impose a lesser sentence on resentencing.
The Court also rejected the argument that the sentence was unreasonable. "In consideration of the § 3553(a) factors, the district court does not need to discuss or state each factor explicitly. An acknowledgment the district court has considered the defendant’s arguments and the § 3553(a) factors will suffice." Here, the district court satisfied these requirements.

Jones: No Crack Reduction for 1994 12kilos offender

In U.S. v. Jones, No 08-13298 (Nov. 19, 2008), the Court upheld the denial of a § 3582(c)(2) sentence reduction to a crack offender.
Jones was originally sentenced in 1994 based on Guideline offense level 38, for a quantity of crack cocaine he admitted was in excess of 12 kilos. The current Guidelines still provide for level 38 for offenders at this quantity of cocaine, even after the recent Guideline amendments. Accordingly, Jones did not qualify as an offender who guideline range was lowered, and therefore was not eligible for a sentence reduction under § 3582(c)(2).
The Court rejected Jones’ reliance on Booker. The Court pointed out that his sentence might be higher today as result of a Booker variance. Further, § 3582(c)(2) allows sentence reduction only when lowered by the Sentencing Commission. Booker was therefore inapplicable.

James: No 3852 reduction when offense level unchanged

In U.S. v. James, No. 08-12067 (Nov. 12, 2008), the Court held that a crack cocaine offender was not eligible for Amendment 706’s retroactive sentence reduction, because the Amendment did not affect the calculation of James’ offense level in a way favorable to him. At his original 1989 sentencing, the base offense level for James 10-15 kilos of crack cocaine was 36. The Guidelines were later amended to increase the punishment to level 38. As a result, James was not entitled to resentencing under 18 U.S.C. § 3582(c)(2).

Steed: Alabama statute not "clearly unconstitutional" for 4th Amend. purposes

In U.S. v. Steed, No. 08-10557 (Nov. 10, 2008), the Court affirmed a marihuana trafficking conviction.
The Court rejected the argument that the marihuana seized from the tractor-trailer the defendant was driving should have been suppressed because the Alabama statute pursuant to which the police officer inspected the truck’s paperwork and equipment (and ultimately discovered marihuana) was clearly unconstitutional. Without reaching the question whether the Alabama statute was, in fact, unconstitutional, the Court held that it was not "clearly unconstitutional," and the police could therefore in good faith rely on it and conduct the inspection.
The Alabama statute permitted police in effect to inspect trucks at any time, at any place, and for any reason. The Court nonetheless concluded that it was not "clearly unconstitutional."
The statute gave "notice" that specifically designated officials may inspect vehicles. The scope of the inspection was limited to "commercial motor vehicles." Although the statute in effect allowed inspections at any time, this was reasonable because commercial trucks operate at all hours. Although the state lacked a limitation with respect to place, this too was reasonable because it is easy for trucks to avoid designated checkpoints. Finally, although the statute placed no limitation on the police’s discretion to inspect, this presented no concern.
The Court rejected the argument that the police officer, testifying as an expert, was permitted to give hearsay testimony about police knowledge of trends in drug trafficking. The Court found no violation of FRE 703, noting that the testimony was not improperly conveying conversations between the police officer and non-testifying witnesses and co-defendants, but instead properly establishing how his "personal training and experience" formed the basis for his knowledge of drug trafficking, criminal indicators, and the commercial trucking industry.
The Court also rejected the argument that the officer violated Rule 704(b) by testifying as to the defendant’s state of mind, an issue that should have been left to the trier of fact. The Court found that the officer properly testified about the nervousness of the defendant, but left it to the jury to decide whether this nervousness established a guilty state of mind.
The Court rejected a challenge to the "deliberate ignorance" instruction, finding that any impropriety in giving this instruction was not prejudicial because the judge also gave the jury an "actual knowledge" instruction and there was sufficient evidence to support this instruction, in light of the defendant’s nervousness and the suspicious state of his paperwork.

Garey: Upholding Domestic Terrorism Enhancement

In U.S. v. Garey, No. 05014631 (Oct. 31, 2008), the Court, on remand from an en banc decision that affirmed the defendant’s conviction, affirmed the defendant’s sentence.
Garey argued that the increase in his Guideline sentence for a felony that "involved or was intended to promote a ‘federal crime of terrorism’" was unwarranted, because the enhancement requires conduct that transcends national boundaries, and his crime was "purely domestic." The Court found that the plain language of the Guidelines references conduct calculated to influence the conduct of government, without regard to national boundaries. Although a defendant’s conduct must transcend national boundaries to sustain a conviction under 18 U.S.C. § 2332b, the Guidelines do not predicate an upward adjustment on this basis.
The Court also rejected Garey’s challenge to the reasonableness of his 360-month sentence, pointing out that it was below the low-end of the Guideline range.

Anton: Court failed to explain reliability of hearsay relied on at sentencing

In U.S. v. Anton, No. 07-13124 (Oct. 30, 2008), the Court affirmed a conviction for being a felon in possession of a firearm, but vacated the sentence and remanded for resentencing.
The Court rejected Anton’s argument that his nolo contendere plea to a prior Florida state crime precluded qualifying it as a "felony." The Court pointed out that the Florida state court did not withhold adjudication, and the prior crime therefore counted as a felony.
Turning to the sentence, the Court found that the district court relied on hearsay statements in determining the number of firearms that Anton should be held accountable for, yet failed to make any findings regarding the credibility and reliability of these hearsay statements. The Court therefore remanded the case because the district court relied on "supported conclusions."

mcNeese: Govt Controls Rule 35(b) resentencing minimum

In U.S. v. McNeese, No. 08-10093 (Nov. 3, 2008), the Court held that the government does have the authority to limit a Rule 35(b) motion for reduction of sentence to one count of an indictment, and thereby preclude a district court from resentencing a defendant to sentence less than that previously imposed on a separate count of the indictment.
The defendant was convicted on two counts. On one count the court imposed a life sentence, on the other count it imposed a 240-month sentence. After the defendant gave "substantial assistance" to law enforcement, the government moved, under Rule 35(b), to reduce sentence on the count for which a life sentence was imposed, but not on the other count. The defendant wanted a sentence below 240 months. The court imposed a 240 month sentence, noting that it could not resentence below 240 months because the government had not moved for a Rule 35(b) reduction for that count.
The Court rejected McNeese’s argument that the sentencing court had authority to sentence below 240 months. The Court noted that the government could control McNeese’s sentence, and that its failure to seek a sentence reduction could only be challenged if it had "unconstitutional motives" for not doing so – something McNeese did not allege.

Prevatte: Prior Georgia Conviction Valid

In Prevatte v. French, No. 07-14536 (Oct. 28, 2008), the Court affirmed the denial of habeas relief to a North Carolina inmate, rejecting his challenges to the validity of prior Georgia convictions that were used as aggravating factors in a North Carolina death penalty sentencing. The Court rejected the argument that defense counsel had a conflict of interest at trial, crediting the state court fact-finding that no conflict existed. The Court also rejected the argument that the prosecution improperly relied on the defendant’s post-arrest silence, finding the evidence of guilt overwhelming.

Thomas: Armed Career Offenders Not Eligible for Crack Guideline Reduction

In U.S. v. Thomas, No. 08-11492 (Oct. 23, 2008), the Court, applying U.S. v. Moore, 541 F.3d 1323 (11th Cir. 2008) (career offenders are categorically ineligible for the two-level reduction made retroactively available to crack cocaine offenders), held that armed career offenders, like career offenders, are not eligible for an Amendment 706 sentence reduction. The Court reasoned that the base offense level reduction relating to crack quantities had not effect on the sentencing range of an armed career offender, which is based on USSG § 4B1.4.

Singleton: Can't Assume Powder will all become crack

In U.S. v. Singleton, No. 07-13329 (Oct. 16, 2008), the Court held that the district erred in establishing the base offense for Singleton’s crack and powder cocaine offenses at level 36, instead of level 34.
The district court arrived at the weight quantity of cocaine by assuming that the powder cocaine seized at Singleton’s motel room could all be converted to crack cocaine. This resulted in a higher base offense level, since crack cocaine is punished more severely than powder. However, the motel room did not contain enough quantities of baking soda for Singleton to convert all the powder to crack. In addition, the baggies in which the powder was found indicated that Singleton also dealt in powder cocaine, not exclusively crack. Hence, the district court’s calculation was speculative. The Court vacated the sentence and remanded for resentencing.

Valladares: 35 days is enough to prepare for Medicare fraud trial

In U.S. v. Valladares, No. 07-14592 (Oct. 9, 2008), the Court upheld the conviction and sentence of a defendant convicted of defrauding Medicare by bribing doctors to prescribe medically unnecessary medication.
The Court rejected Valladares’ argument that the district court abused its discretion when it denied her request for a continuance of the trial. The trial began 35 days after arraignment. The Court noted that the government had identified all the documents it intended to use. Further, Valladares failed to show how other billing records, if presented by her at trial, would have changed the outcome of the case.
Turning to the sentencing issues, the Court rejected the argument that the district court erred in using the commercial bribery guideline in USSG § 2B4.1 instead of the fraud guideline of § 2B1.1 to determine the base offense level. The Court noted that this case involved "fraud achieved through bribery" rather than "straight bribery" and the district court therefore applied the correct guideline.
The Court rejected the argument that fraud in which Valladares used her company in the scheme could not be counted for sentence enhancement purposes, or for calculating the restitution amount, finding that this part of the scheme was part of the "relevant conduct."
Finally, the Court rejected the argument that Ex Post Facto principles barred the imposition of forfeiture for the portion of the conspiracy that predated the effective date of one of the statutes of conviction. The Court noted that no Ex Post Facto violation occurs when a conspiracy does not end until after a statute takes effect.

Jackson: 851 approval not jurisdictional

In U.S. v. Jackson, No 07-13374 (Oct. 7, 2008), the Court held that the requirement that the government obtain approval for an appeal of a sentence from the Solicitor General was not jurisdictional. Thus, it rejected the argument that it lacked jurisdiction to consider the government’s appeal of the defendant’s sentence. The Court also rejected the argument that, in order to appeal a district court’s striking of a sentence enhancement notice pursuant to 18 U.S.C. § 851, the government must appeal before sentencing.
The Court also rejected the argument that the government’s § 851 notice was defective because it was not personally signed or approved by the United States Attorney. The Court held that this power can be delegated to Assistant United States Attorneys.

Dombrowski: 5th Amend. Right Not "Clearly Established" for Prior Conviction Admissions

In Dombrowski v. Mingo, No. 05-13140 (Oct. 3, 2008), the Court affirmed the denial of habeas corpus relief to a Florida inmate, who claimed that a Florida state judge violated his Fifth Amendment privilege against self-incrimination when, without warning Mingo of the consequences, he asked Mingo to admit, for purposes of enhancing his sentence as a Florida "habitual offender," that he had several prior felony convictions.
The Court recognized that in Miranda the Supreme Court broadly stated the scope of the privilege, and recognized caselaw in other circuits which held that the privilege applies when a court inquires of a defendant’s previous convictions for habitual offender enhancement purposes. However, the Court noted that some circuits did not construe the Fifth Amendment to apply in this situation. Thus, the right was not "clearly established." Hence, the Florida state court’s failure to apprise Mingo of his Fifth Amendment privilege was not contrary to "clearly established" law – and therefore could not give rise to habeas corpus relief.

Williams: Counsel Ineffective for Failing to Investigate Defendant's Life History

In Williams v. Allen, No. 07-11393 (Sept. 17, 2008), the Court (Birch, Dubina, Wilson) reversed the denial of habeas relief to an Alabama inmate sentenced to death for a 1988 murder.
The Court found that Williams’ counsel were ineffective at the sentencing stage in failing to broaden the scope of their investigation with regard to Williams’ life history. As a result, counsel "obtained an incomplete and misleading understanding of Williams’ life history." Minimal investigation would have led counsel to follow up on the information about Williams’ psychological problems chronicled in reports, and to interview family members who could corroborate evidence of abuse.
The Court found that Williams was prejudiced by counsel’s failure to investigate, because the evidence of Williams’ repeated beatings in childhood was not presented. Further, the murder here was not "highly aggravated," as evidenced by the fact that the jury recommended a life-sentence by a 9-3 vote (the judge nonetheless imposed the death sentence). The Court held that the Alabama Supreme Court decision, which found no prejudice, was an unreasonable application of Strickland, because the mitigating evidence, taken as a whole, "might have altered the trial judge’s appraisal of Williams’ moral culpability."

Antonelli: Parole Commission 2241 Challenge Not subject to gatekeeping

In Antonelli v. Warden, U.S.P. Atlanta, No. 08-10608 (Sept.17, 2008), the Court held that habeas petitions under 28 U.S.C. § 2241 that challenge denials of credit by the United States Parole Commission are not subject to the gatekeeping requirements of AEDPA (which require such petitioners to first obtain permission from the Court of Appeals before filed a "second or successive" petition).
As to Antonelli’s petition, however, the Court held that it was properly dismissed, because the issue it presented – whether his prior Illinois state convictions were unconstitutional – had been previously adjudicated in a prior federal habeas proceeding. Citing 28 U.S.C. § 2244(a).

Wood: No Deficient Performance on Mental Deficiency Evidence

In Wood v. Hall, No. 06-16412 (Sept. 16, 2008) (2-1, Barkett, J., dissenting), the Court reversed the grant of habeas relief to an Alabama inmate sentenced to death for a 1993 murder.
The district court granted habeas relief based on counsel’s ineffective assistance in failing to put on evidence, during the sentencing phase, of the defendant’s diminished mental capacity.
Reversing, the district court noted that trial counsel had presented some mitigating evidence, and were entitled to deference in not presented further mitigating evidence in light of the downside of this evidence, e.g. a doctor’s evaluation concluded that despite Wood’s "borderline intellectual functioning," he "still had a complete memory of his behavior at the time of the murder." The Court added that even if counsel had been deficient, there was no prejudice to Wood, given evidence of Wood’s "adaptive functioning."

Blankenship: Counsel Not Ineffective to only address guilt,not mitigation

In Blankenship v. Hall, No. 08-10511 (Sept. 15, 2008), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1978 murder.
Blankenship claimed that his state trial counsel provided constitutionally deficient representation by failing to investigate and present evidence of Blankenship’s traumatic childhood at the sentencing phase.
The Court noted that Blankenship bore the burden of proof on this issue. The Court noted counsel’s vague memories, owing to the length of time that elapsed after the trial and before they were questioned about their performance. However, the record showed that counsel knew about Blankenship’s struggle with drugs and alcohol, the family history of schizophrenia, and his "difficult background." Further, Blankenship himself was "in the best position" to inform his counsel on such matters. In order to prove that his counsel was deficient, Blankenship had to show his counsel were unaware of these matters. Blankenship did not show this. Further, Blankenship instructed counsel not to contact his family.
Finally, the Court found that counsel’s strategy at sentencing was to create doubt about Blankenship’s guilt for the murder, to the exclusion of mitigating evidence regarding punishment. "[F]aced with a brutal rape and murder of an elderly woman," Counsel’s strategy was "far from baseless," and, in fact, "sensible."

Schwartz: Affidavit Admission Was Bruton Error

In U.S. v. Schwartz, No. 05-11715 (Sept. 5, 2008), the Court reversed a $30 million fraud conviction because the admission of one defendant’s incriminatory affidavit incriminated his co-defendant, in violation of Bruton v. U.S., 391 U.S. 123 (1968).
During its case in chief, the prosecution introduced in evidence a defendant’s affidavit which set forth the name of a corporation that was using investor monies to line the personal business coffers of the persons who controlled it. Then, in closing argument, the prosecutor expressly linked a co-defendant to this corporation, as the person who controlled the corporation.
The Court found that even if the affidavit itself was insufficient to compel an incriminatory inference against the co-defendant, the prosecutor’s closing statement made the inference inevitable – and therefore "devastating." Hence, a Bruton error occurred. Moreover, the error was not harmless because the affidavit and the closing argument, though repetitive of other testimony, summarized points contained in disparate parts of a lengthy trial, and had "singular credibility," coming as it did from an alleged participant in the fraud. The Court vacated this conviction.
As to another defendant, the Court rejected the argument that the government violated his use immunity agreement by using statements in the grand jury that the defendant gave to a law enforcement agent, to obtain his indictment. The Court noted that the use immunity agreement contained a "Kastigar waiver." A Kastigar waiver means that the defendant waived his right to challenge use of his statements before a grand jury because they were obtained in violation of the Fifth Amendment. The Court inferred that by waiving the Kastigar remedy the defendant meant to waive challenges to the use of his statements before the grand jury.
The Court rejected the sufficiency of the evidence challenge of two other defendants. The Court found that the evidence showed that they knowingly participated in fraud conspiracy.

Moore: Career Offenders Not Eligible for Crack Amendment Reduction

In U.S. v. Moore, No. 08-11230 (Sept. 5, 2008), the Court ruled that career offenders are not eligible for a sentence reduction under the recent retroactive amendment to the crack quantity Guideline.
The Court noted that 18 U.S.C. § 3582(c)(2) only authorizes a sentence reduction if a defendant’s sentence is "based on a sentencing range that has subsequently been lowered." The Court ruled that this "plain language" made career offenders ineligible for a crack amendment sentence reduction. The Court explained that career offenders sentences are "based on the guideline ranges applied to career offenders under § 4B1.1." Thus the crack quantity amendments, which affected § 2D1.1, "played no role" in the calculation of career offender sentences. The Court noted that USSG § 1B1.1 "further support[ed]" this interpretation, because it provided that a retroactive amendment does not apply when it does not have the effect of lowering the a defendant’s sentence. The Court distinguished other cases in which career offenders did get the benefit of the retroactive amendment, noting that the original sentences in these cases were not based on the career offender guidelines. [Note: In relying on USSG § 1B1.1, the Court did not address whether the Guidelines are advisory in § 3582(c)(2) proceedings].

Gonzalez: No basis for $250,000 fine

In U.S. v. Gonzalez, No. 06-15365 (Sept. 2, 2008), the Court reversed the imposition of a $250,000 fine on a defendant convicted of fraud.
The Court noted that the PSI concluded that the defendant lacked the ability to pay a fine. The district court at sentencing stated without explanation that Gonzalez was able to pay a fine, and imposed a $250,000 fine. This fine was three times the maximum provided by the Guidelines. The defendant objected.
Because the record provided no explanation regarding the basis for the fine, the Court vacated the sentence and remanded for resentencing.

Williams: Intent to distribute is not actual distribution

In U.S. v. Williams, No. 07-11707 (Aug. 29, 2008), the Court upheld a jury instruction that instructed the jury that it could take into consideration the defendant’s flight – Williams, when pursued by police, drove his car up to 90 miles per hour before eventually crashing into a metal pole – in determining guilt or innocence of his drug trafficking charge. The Court rejected the argument that the flight reflected nothing more than a generalized consciousness of guilt related to outstanding warrants, rather than guilt about the drugs found in his car.
Turning to the sentence, the Court reversed the imposition of a lifetime ban on receiving federal benefits. The Court noted that 21 U.S.C. § 862 only provides for a lifetime ban if the defendant is convicted of "distribution" of controlled substances. Williams was convicted under 21 U.S.C. § 841 of possession with intent to distribute. The Court concluded that possession with intent to distribute is not actual distribution. Moreover, "if there is ambiguity," the court was obliged to favor a lenient interpretation.

Johnson: Appeal Waiver of 90-day deadline valid

In U.S. v. Johnson, No. 08-10029 (Aug. 28, 2008), the Court held that the defendant, in his appeal waiver, waived his right to challenge an order requiring him to pay $30,000 in restitution, even though the district court entered this order 39 months after his sentence was imposed, well past the 90-day deadline of 18 U.S.C. § 3664(d)(5).
The Court noted that the untimeliness of the district court’s action did not give rise to a claim that it lacked subject matter jurisdiction, because the 90-day period, like a statute of limitations, was subject to equitable tolling, and was therefore not jurisdictional. Hence, the defendant could waive his right to appeal the district court’s order. Moreover, the 39-month delay did not constitute an "extreme circumstance" which would defeat an appeal waiver, in part because the defendant’s plea agreement recognized his responsibility for a loss of $30,000. The Court recognized that different circumstances might lead to a different result, and it did not intend to give district courts "free reign" to disregard the 90-day deadline.