Frazier: One page order suffices to deny 3582(b) relief

In U.S. v. Frazier, No. 15-14640 (May 24, 2016), the Court affirmed the denial of a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). In a one-page order, the district court stated that although Frazier was eligible for a reduced sentence under Guideline Amendment 782, which amended the drug quantity guidelines, “his career offender status, post-sentence conduct in prison, additional state court conviction for murder, and his leadership role in a large-scale drug-trafficking organization counsel against this Court exercising its discretion to reduce Frazier’s sentence.” The Court held that “such an analysis is all that is required to survive our level of scrutiny . . . so long as the record demonstrates that the pertinent factors were taken into account by the district court.” The district court did not abuse its discretion by failing to address explicitly the effect of the Fair Sentencing Act of 2010, or Frazier’s positive efforts to improve his character.

Parks: Failure to give reason for non-guideline sentence subject to de novo, not plain error, review

In U.S. v. Parks, No. 15-11618 (May 20, 2016), the Court held that, for a defendant sentenced, for violations of supervised release, to 60 months’ incarceration, above the guideline range of 21-27 months, the claim that the district court failed to consider the § 3553(a) factors was reviewable only for “plain error,” but the claim that the district court failed to give a “specific reason” for the non-guideline sentence, as required by § 3553(c)(2), was reviewable de novo – even though the defendant did not raise this objection in the district court. The Court reasoned that because § 3553(c)(2) “affirmatively requires the district court to provide a specific reason for a non-guideline sentence,” a contemporaneous objection is not needed; the silent record exposes the error. A district court’s reasons must be sufficiently specific so that an appellate court can engage in meaningful review. If a court does not give reasons, the case must be remanded for resentencing. The Court therefore vacated Parks’ sentence and remanded for resentencing.

Iguaran: Parties' stipulation cannot establish subject matter jurisdiction

In U.S. v. Iguaran, No. 15-13659 (May 12, 2016), the Court, on plain error review, held that the government failed to establish subject matter jurisdiction to support its conviction for conspiring to distribute cocaine while on board a vessel subject to the jurisdiction of the United States. In his plea agreement, Iguaran agreed to plead guilty to conspiring to possess cocaine “with individuals who were on board a vessel that was subject to the jurisdiction of the United States.” The government argued that this statement, without more, constituted an admission of jurisdiction. The Court rejected this argument because parties may not stipulate jurisdiction. Parties can stipulate to facts that bear on jurisdiction, but Iguaran did not do so here. A co-defendant agreed to facts bearing on jurisdiction, for example, that no defendant when apprehended “made a claim of nationality,” but this co-defendant’s admission in another case was irrelevant to Iguara’s case. The Court therefore remanded the case, giving the government an opportunity to prove that subject matter jurisdiction exists.

Daniel: Reversing denial of ineffective claim

In Daniel v. Commissioner, Ala. Dep’t of Corrections, No. 14-12558 (May 16, 2016), the Court reversed the denial of habeas relief to an Alabama inmate sentenced to death for 2001 murders. The Court found that at the penalty phase of Daniel’s Alabama trial, counsel was ineffective in failing to conduct meaningful mitigation investigations into Daniel’s cognitive impairments, or to investigate the nature of Daniel’s prior conviction. The Court found that the Alabama Court of Criminal Appeals adjudication of these issues was contrary to or an unreasonable application of clearly established federal law. Daniel’s claim was therefore reviewable de novo. The Court remanded the case to the district court to reconsider Daniel’s discovery motion regarding his former lawyer’s records, for an evidentiary hearing, and to consider Daniel’s ineffectiveness claim de novo.

Rutgerson: Agreement to pay for sex satisfies "persuade or induce" element of 2422(b)

In U.S. v. Rutgerson, No. 14-15536 (May 12, 2016), the Court affirmed a conviction for attempting to persuade, induce, entice or coerce a minor into engaging in prostitution, in violation of 18 U.S.C. § 2422(b). After exchanging emails with a Ft. Lauderdale, Florida, police detective posing as a 15-year old named “Amberly,” Rutgerson was arrested as he arrived at a hotel at which “Amberly” had agreed to have sex in exchange for his payment of $300. The Court rejected Rutgerson’s argument that this was simply a “market transaction.” The court held that Amberly’s agreement to have sex in exchange for money sufficed to show that Rutgerson attempted to persuade or induce Amberly to engage in sex with him. The Court also rejected Rutgerson’s claim that the evidence showed that he was entrapped. The Court noted that Rutgerson “never expressed any hesitation about having sex with a minor.” The Court found no error in the district court’s refusal to give a theory of defense instruction, holding that the district court’s instruction correctly “tracked the statutory language,” and that the proposed instruction was a substantive instruction on the statute, not a theory of defense instruction. The proposed instruction was incorrect because it failed to account for the fact that Rutgerson was charged with an “attempt,” and therefore should have admitted of the possibility that he could be guilty even if had tried unsuccessfully to entice Amberly into engaging in sex. Finally, the Court agreed with Rutgerson that it was error for the district court to exclude the proffered testimony of a police detective that Rutgerson had never visited any websites dedicated to sex with minors. This evidence was relevant to rebut the government’s charge that Rutgerson was predisposed toward attempting to induce an underage prostitute to have sex with him. However, the error was harmless, because essentially the same evidence was elicited from another witness, and Rutgerson was able to emphasize this evidence during closing defense argument.

Bobby Jo Jenkins: Florida guilty plea with adjudication withheld not a prior conviction

In U.S. v. Clarke and Bobby Jo Jenkins, No. 13-15874 (May 11, 2016), the Court, overruling its prior decision in U.S. v. Orellanes, after obtaining an answer from the Florida Supreme Court to a certified question, held that a Florida guilty plea for a felony with adjudication withheld is not treated as a conviction for purposes of Fla. Stat. § 790.23(1)(a). “Florida’s highest court has plainly told us that our interpretation of Florida law . . . was wrong.” The Court therefore vacated Jenkins’s § 922(g) conviction for being a felon in possession of a firearm.

Clark: No habeas relief for inmate sentenced to death for 1990 murder

In Clark v. Fla. Attorney General, No. 14-15022 (April 27, 2016), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1990 murder. The Court rejected the argument that Clark received ineffective assistance of counsel in failing to present mitigating evidence. Counsel presented the same mitigating evidence earlier in a case in which the jury recommended a death sentence, and therefore had sound reason to decide against presenting the same evidence again. The Court also found that Clark did not show counsel’s failure to present mitigating evidence resulted in “prejudice.”

Miller: Explicit photos need not be "dominant" purpose to violate child pornography statute

In U.S. v. Miller, No. 15-13555 (April 27, 2016), the Court rejected a defendant’s argument that his conviction for producing child pornography should be overturned, because the jury instruction did not require proof that producing child pornography was “one of his dominant motives,” therefore leaving open the possibility that he was convicted even though the photographs were a mere incident of his consensual romantic relationship with the minor. The government was not required to prove that making explicit photographs was Miller’s sole or primary purpose. It was enough that it was a purpose. The Court also rejected Miller’s argument that his sentence should not have been enhanced based on his prior conviction, because this prior offense did not require proof that the victim was a minor. The Court held that the statute did not require that the prior conviction involve a minor in order for the 25-year mandatory minimum to apply.

Smtih: Garrity waiver is valid

In U.S. v. Smith, No. 13-15476 (April 29, 2016), the Court held that the defendant – a prison guard charged with beating an inmate to death – validly waived his Garrity rights to not be coerced into surrendering his Fifth Amendment right to silence under threat of being fired or subjected to other sanctions. With regard to most of the statements Smith gave to prison officials investigating the incident, the Court concluded that the statements were not compelled. The Court emphasized that Smith did not testify at the evidentiary hearing, thus limiting proof that he subjectively believed he would be subject to sanctions if he failed to cooperate. Turning to a written waiver of Garrity rights that Smith signed during the investigation, the Court held, as a matter of first impression, that an employee can waive his Garrity rights. The Court noted that the waiver was voluntary. It was knowing, as it informed Smith of his waiver of compelled testimony. And, “critically,” there was no violation of Garrity prior to the waiver, because none of the federal investigators had access to any statements Smith made until after he signed the waiver.

Barron-Soto: Independent source doctrine supports warrantless search

In U.S. v. Barron-Soto, No. 13-14731 (April 26, 2016), the Court held that the “independent source doctrine” made the evidence obtained from cell phones admissible, even though the phones were searched without a warrant. The Court noted that the district court’s ruling that the warrantless search was valid, under the exigent circumstances doctrine, because of the possibility of a remote wipe, was erroneous in light of the Supreme Court’s recent decision in Riley. However, the warrant affidavit did not contain any information learned from the warrantless search of the cell phones. Rather, the affidavit described the circumstances of the arrests for narcotics trafficking. This information supported probable cause for the a search warrant for the cell phones.

Norris: Movant entitled to evidentiary hearing on whether judge was actually biased against him

In Norris v. U.S., No. 15-1390 (April 25, 2016), the Court held that a § 2255 movant was entitled to an evidentiary hearing regarding whether the district judge who presided over his criminal trial, in which he was convicted of forcing women into prostitution, was actually biased against him. The Court noted that the judge (Judge Camp) was subsequently convicted of federal charges, and admitted to bipolar disorder. Further, there was evidence that he harbored racial bias against African-American men.” “Norris alleges something more than the personal biases or prejudices that are governed by the recusal statute; he identifies specific statements that Camp could not set aside his prejudice against him.”

Jimenez-Antunez: Defendant can fire retained counsel without showing "good cause"

In U.S. v. Jimenez-Antunez, No. 15-10224 (April 25, 2016), the Court held that a defendant need not show “good cause” to dismiss his retained counsel and replace him with appointed counsel. The Court found that the district court erroneously denied defense counsel’s motion to withdraw as counsel based on its finding that the defendant had been “afforded effective counsel.” This was the wrong inquiry. The Court explained that the Sixth Amendment guarantees a defendant the right to “counsel of choice,” and this includes the right to hire “and fire” retained counsel. A motion to discharge retained counsel should be granted unless denial is compelled by purposes inherent in the fair, efficient, and orderly administration of justice. The Court vacated the judgment, and remanded the case because it could not determine whether the district court would have granted the motion to withdraw had it applied the correct standard.

Warren: Guideline enhancement requires only one obliterated serial number

In U.S. v. Warren, No. 15-12519 (April 21, 2016), the Court affirmed the imposition of a four-level enhancement under U.S.S.G. § 2K2.1(b)(4)(B), for possession of a firearm that had an altered or obliterated number. When Warren was arrested the serial number on the gun’s frame was intact, while the serial number on its slide had been altered or obliterated. The Court held that the enhancement applied even when only one of two serial numbers had been altered or obliterated. The Court relied on the plain language of the Guideline, which only required that the firearm had “an” altered or obliterated serial number.

In Re Robinson: Johnson applies retroactively in the Eleventh Circuit

In In Re: Troy Robinson, No. 16-11304-D (April 21, 2016), the Court acknowledged that the Supreme Court’s recent decision in Welch v. U.S. held that Johnson v. U.S., which held that the residual clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague, applies retroactively. This overruled Eleventh Circuit precedent on this point. However, because Robinson’s prior convictions for armed robbery, and aggravated battery with a firearm, still qualified as “violent felony” predicates under the ACCA “elements” clause, Robinson’s sentence remained valid even without ACCA’s residual clause. Consequently, the Court denied Robinson’s application for leave to file a second or successive § 2255 motion. [Martin, J., concurring, listed all cases in which the Eleventh Circuit had recently denied an application for leave to file a second or successive § 2255 motion based on Johnson, in part for the sake of Federal Public Defender offices monitoring these cases.]

Croteau: 56-month sentence for filing fraudulent tax returns

In U.S. v. Croteau, No. 15-11720 (April 11, 2016), the Court affirmed convictions for making fraudulent claims on tax returns, and corruptly interfering with the administration of internal revenue laws. Rejecting a sufficiency of the evidence, the Court noted that Croteau began filing his tax returns on his own based on theories espouses by the tax-protesting group he had joined, in a method inconsistent with how he had always filed his taxes before. In addition, the IRS warned several times that there was no basis in law for his filings. Further, the jury, once Croteau testified, was entitled to disbelieve his testimony and conclude that the opposite “is true.” Finally, Croteau got the benefit of a “good faith defense” jury instruction. Turning to sentencing, the Court rejected Croteau’s challenge to the reasonableness of his 56-month sentence.

Green: Conclusory assertions about exculpatory testimony insufficient for severance

In U.S. v. Green, No. 15-10270 (April 7, 2016), the Court affirmed the convictions of two-codefendants for operating a business that unlawfully sold oxycodone to fake patients. The Court rejected a challenge to the sufficiency of the evidence. Reviewing the arguments in part for “plain error” because the specific challenge was not raised in the district court, the Court noted the fact that the customers paid in cash, that the defendants had signing authority over the bank accounts, that 90% of the prescriptions were for oxycodone. From such facts, the jury could reasonably find that the defendants laundered the proceeds of illegal drug distribution. The Court also found no error in the district court’s refusal to sever one defendant from the other. Defendant Hebble claimed that co-defendant Green would have exonerated her, had they been tried separately. But Hebble failed to proffer sufficiently specific exculpatory testimony to warrant severance. “Conclusory assertions” that Green would impeach government witnesses did not suffice.

Marroquin-Medina: Percentage-based approach is not mandated for 3582 reductions

In U.S. v. Marroquin-Medina, No. 15-12322 (April 1, 2016), the Court held that for offenders who received a reduced sentence at their original sentencing based on their substantial assistance to the government, and now seek a sentence reduction pursuant to a Guideline amendment, the Guidelines’ “percentage-based approach” to sentence reductions is not the only permissible way a district court may amend the sentence under 18 U.S.C. § 3582(b). The defendant received a sentence reduction for substantial assistance at his original sentence, for substantial assistance. Thereafter, Amendment 782 lowered his Guideline range. In response to his § 3582(b) sentence-reduction motion, the government claimed that the district court could impose a new sentence no lower than the same percentage reduction off the original guideline range. The defendant claimed that the district court should reduce the Guideline offense level by the same number of levels it reduced it at the original sentencing. The district court opted for the government’s view. Reversing, the Court noted that the Guidelines do not mandate a particular approach. A Guideline commentary uses the percentage-based approach as an example, but this not the only permissible method. The Court therefore reversed the district court, though without expressing any opinion as to the appropriate final amended sentence.

Griffin: No savings clause for defendant whose total length of detention was valid

In Griffin v. Warden, FCC Coleman-Low, No. 15-11335 (April 1, 2016), the Court held that despite a Begay error in counting his previous conviction for the Florida crime of carrying a concealed firearm as a qualifying offense for purposes of the armed career criminal act (ACCA), the defendant was not entitled to habeas relief under the “savings clause” of 28 U.S.C. § 2255(e), that applied to inmates who, having already challenged their judgment under § 2255, now sought relief under § 2241. The Court noted that Bryant v. Warden, FCC Coleman-Medium requires a petitioner to establish that his current detention exceeds the statutory maximum authorized by Congress. The Court interpreted Bryant to require that a petitioner show not just that one of his concurrent sentences was illegal, but that his overall detention is illegal – which Brown failed to do. “Put simply, there is no fundamental defect when a prisoner is not serving more time, in total, than authorized by law.” Here, while Brown’s 188-month ACCA sentence was illegal, his 188-month detention was authorized by the statutory maxima for his drug crimes – life. Further, a Guidelines error does not trigger the savings clause.

Thomas: Wife's consent to search of a shared computer validates search

In U.S. v. Thomas, No. 14-14680 (April 1, 2016), the Court held that a wife’s consent to the police’s warrantless search or a computer she shared with her husband made the search reasonable under the Fourth Amendment. The Court noted that the computer was easily accessible in an unlocked room in the shared residence, the wife had access to the computer and used it on the morning of the search (and discovered images of child pornography, and called the police), and shared the password to access the computer. The Court found it “particularly significant” that the defendant did not protect his Internet history by maintaining a separate login name and password or by encrypting his files. The Court declined to reach whether the defendant’s objection to the search might have mattered, under Georgia v. Randolph, finding that the search here occurred after the wife’s consent and before the husband awoke and objected to the search. The Court held that even if Georgia v. Randolph were extended to require police to awake the sleeping defendant before searching, the search would still have been reasonable under the “independent source doctrine.” Based only on the wife’s telling police about her discovery of child pornography, and the websites visible on the computer, there was a fair probability that child pornography would be found on the computer. The police therefore would have sought a search warrant of the computer regardless of the results of their initial warrantless search of the computer.

In Westmoreland v. Warden, No. 14-15738 (March 30, 2016), the Court held that the filing of a Georgia “extraordinary motion” for a new trial is the type of State post-conviction application that tolls the one-year statute of limitation for the filing of a habeas petition. In the trial court, the State of Georgia refused to disclose that Westmoreland had filed an “extraordinary motion,” but did so on appeal. With the tolling resulting from the filing his extraordinary motion, Westmoreland’s habeas petition was timely. The Court remanded for the district court to consider whether Westmoreland might have failed to exhaust state remedies.

Mays: Johnson and Descamps apply retroactively to first habeas petition

In Mays v. U.S., No. 14-13477 (March 29, 2016), the Court held that Descamps and Johnson apply retroactively to a first-habeas petition defendant sentenced to a higher mandatory sentence based on prior convictions under the Armed Career Criminal Act (ACCA), and therefore ordered resentencing. One of Mays’ prior qualifying convictions was an Alabama third-degree burglary. In U.S. v. Howard, the Court had already held, post-Descamps, that this Alabama burglary did not qualify under ACCA’s enumerated clause. Mays was sentenced pre-Descamps. The Court found that Descamps did not announce a new rule, “but was simply reaffirming” an existing approach. Thus, under Teague v. Lane, Descamps applied retroactively, and the Alabama burglary did not qualify under the enumerated clause. Turning to whether the Alabama burglary qualified under ACCA’s residucal clause, the Court held that Johnson, which held the residual clause to be unconstitutionally vague, applied retroactively because it was a new substantive rule of constitutional law. Citing Schriro v. Summerlin, the Court noted that new substantive rules include decisions that “place particular conduct or persons covered by the statute beyond the State’s power to punish.” The Court recognized that in In re Rivero, it had held that Johnson did not apply retroactively to a defendant who filed a second and successive habeas petition. But Mays was on his first habeas petition, and therefore does not require a ruling by the Supreme Court that Johnson is retroactive. Further, Rivero found that Johnson announced a new substantive rule of constitutional law. Accordingly, Johnson was retroactively applicable to a first habeas petition.

Taylor: "Production" and "Use" of Devices are distinct

In U.S. v. Taylor, No. 14-13288 (March 28, 2016), the Court rejected the argument that the imposition of the mandatory two-year sentence for aggravated identity theft in violation of 18 U.S.C. 1028A did not preclude the imposition of an additional two-level enhancement under U.S.S.G. § 2B1.1(b)(11)(B)(i) for the “production” of an authorized access device. The Court explained that while § 2B1.6 of the Guidelines precluded the imposition of an additional Guideline enhancement for the “use” of a means of identification, this double-counting preclusion did not apply to the “production” of such a device. The Court reasoned that producing unauthorized devices creates more opportunities for prohibited conduct than mere use of a pre-existing device. Taylor’s scheme involved submitting false identities to banks in order to cause them to produce credit cards. The Court held that, in so doing, Taylor “willfully caused” the production of the credit cards, and was accountable for their “production” even though the cards were manufactured by the banks, an innocent third party.

Baston: Foreign Commerce power to apply criminal law extraterritorially is as broad as Interstate Commerce power

In U.S. v. Baston, No. 14-14444 (March 24, 2016), the Court affirmed the convictions and sentence of a defendant convicted of sex trafficking by force, and money laundering the proceeds of this sex trafficking, and, on a government cross-appeal, reversed the district court’s decision not to award restitution to an Australian sex-trafficking victim. On plain error review, the Court found no error in the district court’s response to the jury’s supplemental question during deliberations, that asked whether it would be illegal to transfer funds if prostitution is legal in Australia and money was made there by those means. The Court found that this question asked about money laundering, not sex trafficking. The district court’s answer must have been satisfactory, because the jury asked no further questions after receiving the supplemental instruction. The Court also rejected Baston’s challenge to the sufficiency of the evidence regarding whether his conduct was “in or affecting” interstate commerce. Reviewing the argument for plain error because Baston failed to raise this specific challenge in the district court, the Court found that even if Baston trafficked this victim only in Florida, his use of phones, the Internet, hotels and buses facilitated his trafficking, so his conduct was “in commerce.” Turning to the government’s cross-appeal, the Court agreed with the government that the defendant had to pay restitution to a victim even if the prostitution occurred overseas. The Court noted that in U.S. v. Bellaizac-Hurtado, it had held that the extraterritorial application of a criminal law exceeded Congress’ authority under the Offences Clause of Article I of the Constitution. But the Court noted that it might have reached a different result in Bellaizac-Hurtado if the government had relied on Article I’s Foreign Commerce Clause. “[T]he Foreign Commerce Clause provides Congress a broad power.” The Foreign Commerce Clause has at least “the same scope as the Interstate Commerce Clause.” “In other words, Congress’s power under the Foreign Commerce Clause includes at least the power . . . to regulate activities that have a ‘substantial effect’ on commerce between the United States and other countries.” Here, Congress had a “rational basis” to conclude that sex trafficking by force “even when it occurs exclusively overseas” is part of an economic class of activities that have a “substantial effect” on commerce “between the United States and other countries.” Accordingly, the extraterritorial application of the sex trafficking statute is a constitutional exercise of Congress’s authority under the Foreign Commerce Clause.

Ledford: death penalty can imposed despite "Flynn effect" on IQ test score

In Ledford v. Warden, Georgia Diagnostic and Classification Prison, No. 14-15650 (March 21, 2016), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1992 murder. The Court rejected the argument that the “Flynn effect,” which observes that IQ test scores have been rising steadily for 20 years, did not invalidate the district court’s rejection of Ledford’s argument that his IQ of 77-79 made him mentally retarded and therefore ineligible for the death penalty. The Court agreed with the district court that the “range” of Ledford’s IQ could be as high 80. Further, a district court is not required to accept and apply the Flynn effect. There is no medical consensus about the Flynn effect. The Supreme Court has not indicated how the Flynn effect should be factored into the IQ analysis.

Sammour: Affirming Identity Theft Convictions

In U.S. v. Sammour, No. 13-13962 (March 16, 2016), the Court affirmed the convictions and 115-month sentence of a defendant charged with stealing persons’ identities in order to recover fraudulent tax refunds from the Internal Revenue Service. Sammour pled guilty to the theft of public money charges, but went to trial on the aggravated identity theft charges. At sentencing, the district court denied an acceptance of responsibility sentence reduction, and departed upward from a Criminal History Category II to Category V. The Court rejected a challenge to the sufficiency of the evidence, finding evidence that showed that Sammour knew he was stealing the identity of real persons. On plain error review, the Court rejected the argument that the district court constructively amended the indictment, when it instructed the jury that a means of identification was a “date of birth” when the indictment had only charged “name and social security number” as the means of identification. The Court found no precedent in the Eleventh Circuit, or in sister circuits, squarely holding that an amendment of the “means” of committing a crime was a constructive amendment. Hence any error was not “plain.” The Court found no abuse of discretion in the district court’s decision to keep on the jury a juror who sent out a note stating: “Will we be offered the jury protection program? This reeks of Alquaida and honestly have concerns for our safety.” Turning to sentencing, the Court found no error in the district court’s decision to deny an acceptance of responsibility sentence reduction. Though Sammour pled guilty to some counts, he went to trial on others. Further, the district court found that his belated apology was entitled to little weight. The Court also affirmed the upward departure from Category II to V. A district court is authorized to assign criminal history points to unscored prior convictions and extrapolate the criminal history category that would have applied.

McCloud: Government did not prove three separate prior convictions for ACCA

In U.S. v. McCloud, No. 14-14547 (March 16, 2016), the Court found that the government did not prove that McCloud’s three prior armed robbery convictions were committed on separate occasions, and he therefore was not subject to a 15-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA). The Court concluded that although the charging documents reflected that there were three different victims, different items stolen, and three different case numbers, these pieces of information did not make it more likely than not that the crimes were committed successively rather than simultaneously. “On the face of the charging documents, it is plausible that all three victims were standing in the same location, and each simultaneously gave up the items of value in his pockets.” Moreover, “the individual case numbers themselves do not convey any information pertaining to the time or location of the offenses.” The Court also rejected the government’s argument that the incidents were separate because they involved different co-defendants. The Court noted that it was plausible that two offenses were committed simultaneously, or even that McCloud committed all three robberies simultaneously, “with varying amount of participation from his colleagues.” The Court also rejected the argument that the plea colloquy referred to one address, thus establishing that the other offenses were at other addresses. Finally, the Court rejected the government’s attempt to rely on the Presentence Investigation Report, pointing out that the defendant had objected to the specific paragraphs at issue. Once McCloud objected, the government had to present reliance and specific evidence in Shepard-approved documents to establish three separate incidents. It did not.

Castillo: Pretrial intervention participant's expectation of privacy akin to probationer's

In Castillo v. U.S. , No. 13-11757 (March 15, 2016), the Court rejected a claim that defense counsel rendered constitutionally ineffective assistance when he failed to move to suppress guns found by police during a warrantless search of Castillo’s home. At the time of the search, Castillo was on supervision subject to Florida’s pretrial intervention program. The Court analogized this status to the situation of persons on parole or on probation, who have diminished expectations of privacy. The police only needed “reasonable suspicion” to conduct a warrantless search of Castillo’s home. The police had reasonable suspicion based on the tip they received, a fax from Castillo’s former mother-in-law showing a photo of a man who appeared to be Castillo holding a gun and extending his middle finger and making a threatening statement. [Robreno, J., concurring, stated that a pretrial intervention participant’s privacy interest is not directly analogous to a probationer’s but sits somewhere between the general public and a probationer; he concurred in the result in this case because the information available to police gave them particularized suspicion sufficient to justify the search of Castillo’s house].

Osorio-Moreno: 120 month sentence for illegal reentry is not unreasonable

In U.S. v. Osorio-Moreno, No. 14-14447 (March 1, 2016), the Court rejected the argument that a 120-month sentence was substantively unreasonable for a defendant convicted of unlawful reentry after deportation, with a guideline range of 51-63-months. The Court noted that the defendant had 20 prior criminal convictions and six of these convictions were not counted in his 16 criminal history points. The Court noted that it had previously upheld large upward deviations based solely on an offender’s extensive criminal history, citing U.S. v. Shaw, U.S. v. Sanchez, and U.S. v. Rosales-Bruno. “Osorio has engaged in a life of crime, with a staggering 20 convictions, and the district court reasonably concluded that Osorio’s guideline range understated his criminal history.”

In re Anthony Johnson: Post-Johnson 2255 motion held in abeyance pending Welch

In In Re: Anthony Johnson, No. 16-10011 (Feb. 26, 2016), the Court ruled that it would keep in abeyance a second or successive 28 U.S.C. § 2255 motion to vacate a sentence pending the Supreme Court’s decision in Welch v. U.S. on whether Johnson v. U.S., 135 S.Ct. 2551 (2015) announced a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review. The Court recognized that 28 U.S.C. § 2244(b)(3)(D) provides that a court “shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.” The Court also recognized that the Supreme Court would not decide Welch within 30 days of the motion. However, the Court held that the 30-day deadline was not mandatory. The Court noted its inherent power to hold cases in abeyance, and the equitable nature of habeas proceedings. The Court also noted the judicial economy of granting all applications held in abeyance in a single order, should the Supreme Court in Welch hold that Johnson applies retroactively to cases on collateral review.

Holmes: "Lascivious" depiction based on intent of video's producer

In U.S. v. Holmes, No. 14-11137 (Feb. 25, 2016), the Court affirmed child pornography possession and production convictions and a 180-month sentence imposed on a stepfather who surreptitiously videotaped his teenage stepdaughter while she was in the bathroom. Holmes claimed that his videotaping was merely the work of a “voyeur” not the production of “sexually explicit conduct” such as “lascivious exhibition of the genitals or pubic area.” Joining other circuits to have so held, the Court concluded that depictions of otherwise innocent conduct may in fact constitute “lascivious exhibition” based on the actions of the individual creating the depiction. The “lascivious exhibition” is not the work of the child, whose innocence is not in question, but of the producer of editor of the video. Holmes’ placement of cameras in the bathroom where his stepdaughter was most likely to be videoed while nude, his extensive focus on capturing images of her pubic area, the angle of the camera set up, and his editing, all created a lascivious exhibition.

Danny: Belated appeal request does not toll habeas limitations period

In Danny v. Sec., Fla. Dep’t of Corrections, No. 14-15522 (Feb. 3, 2016), the Court affirmed the denial of habeas relief, holding that a Florida inmate’s petition for belated post-conviction appeal did not toll the one-year statute of limitations. The Court explained that the statute of limitations is only tolled when an application for “collateral review” is pending in the state courts. But the Court held that an application for a belated appeal is not an application for “collateral review,” as it does not challenge any ruling in the criminal case.

Patterson: Habeas Petition Not Second or Successive

In Patterson v. Sec., Fla. Dep’t of Corrections, No. 12-12653 (Jan. 29, 2016) (2-1), the Court held that a habeas petition was not subject to the restrictions on “second and successive” petitions because the state court had amended the judgment to eliminate a requirement of chemical castration, and the petition was the first habeas petition from this amended judgment. The Court analogized Patterson’s case to Magwood v. Patterson, 561 U.S. 320 (2010) and Insignares v. Secretary, 755 F.3d 1273 (11th Cir. 2014), cases in which an amended judgment meant that the subsequent habeas petition, challenging the amended judgment, was not second or successive.

Overstreet: Appellate counsel was constitutionally ineffective

In Overstreet v. Warden, No. 13-14995 (Jan. 27, 2016), the Court (Black, Martin, and Anderson., JJ.) reversed the denial of habeas relief to a Georgia inmate.. The Court held that Georgia appellate counsel was constitutionally ineffective in failing to raise on appeal, in the Georgia appellate courts, the issue that convictions for the crime of “kidnapping” should be reversed, because intervening Georgia law held that the asportation of victims during a robbery did not constitute “kidnapping.” The Court noted that appellate counsel has no duty to raise every non-frivolous issue and reasonably weed out weaker (albeit meritorious) arguments. Only when ignored arguments are “clearly stronger than those presented” will appellate representation be ineffective. The Court noted: “In many (perhaps most) cases, counsel may err without being deficient or may be deficient without causing prejudice.” But in light of intervening Georgia caselaw, Overstreet’s kidnapping convictions would have been reversed. Therefore, appellate counsel’s representation was “undeniably ineffective.”

Bowers: Evidence "close" but sufficient

In U.S. v. Bowers, No. 14-11585 (January 22, 2016), the Court affirmed the convictions for eight Hobbs Act violations and eight counts of carrying, using a firearm in violation of 18 U.S.C. § 924(c), and a sentence of 332 months. Bowers had filed an untimely motion for severance of the counts of the Indictment. Reviewing this issue for plain error on account of the untimeliness (and finding that waiver did not apply under newly-amended Fed. R. Crim. P. 12), the Court found no plain error. The Court dismissed as “speculation” Bowers’ argument that the jury may have cumulated evidence from joined counts. The Court noted that to the contrary the relatedness of the robberies permitted the jury to use identity evidence from other counts to determine the robber’s identity. Though recognizing that the sufficiency of the evidence challenge presented a “close case,” the Court found that the common modus operandi of the robberies and the totality of the identity evidence sufficed to convict Bowers. The Court recognized that a scientific inference from DNA evidence might have been problematic, but concluded that the additional identity evidence and the modus operandi evidence made an inference based on DNA “permissible.” The Court rejected Bowers’ challenges to his sentence, including his claim that the sentence was cruel and unusual under the Eighth Amendment. The Court noted that in Harmelin v. Michigan, the Supreme Court rejected an Eighth Amendment challenge to a sentence of life without parole for possession of cocaine.

McCarthan: no subject matter jurisdiction for savings clause relief

In McCarthan v. Warden, FCC Coleman, No. 12-14989 (Jan. 20, 2016), the Court held that the savings clause of 28 U.S.C. 2255(e) did not permit the district court to entertain a petition under 28 U.S.C. § 2241 challenging an ACCA sentence. The Court explained that even after disqualifying two of the prior convictions that had qualified McCarthan as an armed career criminal at his original sentencing – in light of intervening Supreme Court caselaw – three qualifying convictions still supported the ACCA enhancement. Consequently, McCarthan could not obtain subject matter jurisdiction to decide his § 2241 petition.

Lockett: South Carolina "burglary" indivisible

In U.S. v. Lockett, No. 14-15084 (Jan. 21, 2016), the Court vacated the sentence of a defendant sentenced as an armed career criminal under ACCA. Lockett argued that his two prior conviction for “burglary” in South Carolina did not count as predicate “violent felony” offenses. The Court agreed. Noting that Descamps requires that a sentencing court to determine whether a statute is “divisible” or “indivisible” based on whether it requires proof of alternative elements, the Court concluded that South Carolina’s burglary statute was indivisible, because it merely requires proof of entry in a “dwelling,” and the type of dwelling is not an element of the offense. Under South Carolina law, the type of dwelling includes locales, for example, a “vehicle,” that are not “generic” burglary, that is, do not involve entry into a “building or structure.” In a footnote, the Court noted its precedent that had held, on plain error review, that the South Carolina statute was “divisible.” But Lockett preserved the issue, so review was de novo, not for “plain error” – and on de novo review, Lockett prevailed.

Zitron: Affirming Tax return convictions

In U.S. v. Zitron, No. 14-10009 (Jan. 21, 2016), the Court affirmed convictions for filing false tax returns, use of an unauthorized access device, and aggravated identity theft. The Court rejected the argument that the counts charging identity theft, which involved stealing the identities of the defendant’s son and his ex-wife, should have been severed from the tax counts. The Court noted that the district court instructed the jury to treat the counts separately, and that evidence of one crime would have been admissible at a separate trial on the other crime. The Court rejected the argument that a government expert improperly commented on Zitron’s failure to testify when he said that absent an explanation from the defendant, the cash in his bank account would be treated as income. In context, the statement was not impermissible. Turning to the challenge of the sufficiency of the evidence on the aggravated identity theft, the Court noted that because defense counsel at trial did not make the “specific argument” in his Rule 29 motion that was being raised on appeal, the sufficiency issue would only be reviewed for “plain error.” The Court found no “plain error,” in light of testimony that Zitron did not have permission to use another’s identity. The Court rejected the argument that the calculation of the tax loss figure should only have included amounts deposited in Zitron’s bank accounts. All conduct violating the tax laws was the proper basis for the loss calculation. The Court also rejected Zitron’s challenge to his “organizer or leader” sentence enhancement, pointing out that both of the person Zitron directed knew that he was engaged in a scheme to hide the source of his income for tax purposes.

Adams: Vacating ACCA sentence post-Johnson

In U.S. v. Adams, No. 14-14329 (Jan. 12, 2016), the Court vacated the 15-year sentence of a defendant sentenced under the Armed Career Criminal Act (ACCA), because he had been sentenced under ACCA’s residual clause. Two of Adams’ prior convictions were for third-degree fleeing or attempting to elude, in violation of Fla. Stat. § 316.1935. In the trial court, Adams had objected that the residual clause was unconstitutionally vague, and, while his appeal was pending, the Supreme Court so held in Johnson. The Court noted that Adams’ § 315.1935 prior convictions, post-Johnson, could qualify as predicate offenses only if they qualified under other ACCA provisions, such as the elements clause. But the § 315.1935 offenses did not have as an element the use of physical force and did not otherwise qualify. Those prior convictions were no longer ACCA-qualifying offenses, as the government conceded. The Court noted that at sentencing the government “disavowed reliance on a fourth conviction to form the basis of the ACCA enhancement. Citing U.S. v. Canty, the Court held that the government thereby waived its opportunity to now rely on this fourth offense.

Salmona: No mandamus subject matter jurisdiction to enforce plea agreement

In U.S. v. Salmona, No. 15-12659 (Jan. 8, 2016), the Court held that the district court lacked subject matter jurisdiction to adjudicate an inmate’s claim that the government breached its plea agreement when it failed to make him serve his sentence in a federal prison, as opposed to a state prison. Salmona’s plea agreement provided that in exchange for his cooperation, the government would allow him to serve a state sentence in federal custody. The agreement also provided that in the event Salmona gave false testimony, the promise of immunity would be void. Salmona gave false testimony, and the government relied on this breach to rescind the plea agreement, including its promise to have Salmona serve his state sentence in federal prison. Salmona then brought an action in the district court, seeking to enforce the federal custody provision of his plea agreement. The Court found that the mandamus statute, 28 U.S.C. § 1361, was the only basis for Salmona’s claim, but this requires a showing that the government owed Salmona a clear nondiscretionary duty. Here, it was “disputable” whether the government could rescind the entire plea agreement, based on Salmona’s false testimony, because this was a “substantial” breach of the plea agreement. The Court noted a Second Circuit case holding that the government could rescind a plea agreement when the defendant was in material breach of the agreement. [Note: this Second Circuit case did not involve a plea agreement, as here, that specified the government’s remedy [voiding a promise of immunity] in the event the defendant gave false testimony]. Because it was disputable whether Salmona was entitled to relief, he did not satisfy the jurisdictional requirement of showing a clear non-discretionary duty.

In re Franks: Johnson not retroactive for second or successive 2255 ACCA petitioner

In In re: Kurt Franks, No. 15-15456 (Jan. 6, 2016), the Court (2-1) (Martin, J., dissenting) held that an inmate who filed a “second or successive” motion to vacate his sentence under 28 U.S.C. § 2255 could not benefit from the holding in Johnson v. U.S. that the residual clause of ACCA was unconstitutional, because the Supreme Court has not made Johnson retroactive. The Court noted that, in a case involving an offender sentenced under the residual clause of the career offender Guideline, it had held in In re Rivero, 797 F.3d 986 (2015) that Johnson was not retroactive. The Court found the retroactivity analysis “identical” here. In Rivero, the Court had reasoned that Johnson had not “necessarily dictated” that its holding should be applied retroactively. The Court noted that in 28 unpublished cases it had already applied Rivero to an ACCA movant. Dissenting, Judge Martin noted that a Supreme Court decision applies retroactively when a defendant “faces a punishment that the law cannot impose upon him.” Judge Martin stated that Rivero, which involved an offender sentenced under the Sentencing Guidelines, did not extend to an offender sentenced under ACCA. [Query: In Spencer, the Eleventh Circuit held that a claim that an offender was not correctly categorized as a “career offender” under the Guidelines was not the type of claim that was cognizable under § 2255; might this be a basis for distinguishing a § 2255 career offender from a § 2255 ACCA claimant?]. Judge Martin noted that the Court could certify the retroactivity issue to the Supreme Court, or rehear the issue. Judge Martin recognized that in 28 prior unpublished cases the Court had denied relief to claimants like Franks, and added: “Twenty-eight wrongs don’t make a right.”

Doxie: Fraud and false tax filing convictions need not be grouped

In U.S. v. Doxie, No. 15-11161 (Jan. 4, 2016), the Court rejected the defendant’s argument that the district court, for sentencing purposes under the Sentencing Guidelines, should have grouped into a single group his convictions for fraud and his convictions for filing false tax returns. The Court noted that grouping is required for “closely related” counts of conviction. Here, Doxie’s fraud, and his failure to report the proceeds of his fraud on his tax return, involved separate conduct, covered by separate Titles of the United States Code, and different victims. Moreover, because the Guideline for fraud did not include a specific enhancement for the tax counts, no double counting resulted from the decision not to group to the sets of convictions. Grouping would have resulted in no additional punishment for Doxie’s tax crimes.

Alvarado: Insufficient evidence to support public authority instruction

In U.S. v. Alvarado, No. 13-14843 (Dec. 11, 2015), the Court affirmed the conviction and 360-month sentence of a defendant who claimed he was working as a government informant when he engaged a drug trafficking informant. The Court held that Alvarado failed to offer sufficient evidence to support giving the jury a “public authority defense” jury instruction. The Court noted that some confusion in its caselaw regarding how much evidence a defendant must offer to obtain this instruction, but found no need to harmonize the standards because Alvarado failed to offer any evidence that a law enforcement official authorized his criminal conduct. The Court noted the defendant’s “radio silence” with law enforcement during periods when he was meeting with drug traffickers. Moreover, his written agreements with law enforcement agencies prohibited him from taking actions not authorized by his handlers. Though not adhering to any formalistic requirements about what constitutes “authorization,” the Court rejected Alvarado’s argument that he reasonably relied on his original informant role for participation in subsequent crimes. The Court also noted that the jury rejected the “innocent intent” defense. Turning to sentencing, the Court rejected Alvarado’s unreasonableness challenge to his within-Guidelines term of incarceration. The Court noted that his co-conspirators received lesser sentences, but admitted guilt.

Kilgore: Hall IQ holding does not apply retroactively

In Kilgore v. Sec., Fla. Dep’t of Corr., No. 13-11825 (Nov. 16, 2015), the Court affirmed the denial of habeas relief to a Florida death-row inmate who claimed that he was intellectually disabled and therefore ineligible for the death penalty for his 1989 murder. In Atkins v. Virginia (2002), the Supreme Court held that the execution of the intellectually disabled violates the Eighth Amendment. In Hall v. Florida (2014), the Supreme Court held that an individual with an IQ test score between 70 and 75 or lower may present additional evidence of difficulties in adaptive functioning. Kilgore had IQ socres of 74, 75 and 76. The Florida Supreme Court affirmed his execution because the Florida IQ cutoff, pre-Hall, was 70. Kilgore claimed that he should have gotten the benefit of Hall, retroactively. The Court rejected this argument, finding that it squarely held in In re Henry that Hall merely created new procedures for ensuring that states follow the rule enunciated in Atkins. The Court rejected the argument that the actual holding of In re Henry was limited to its finding that Henry’s IQ was 78, which put Henry outside the protection of Hall. This was an alternative holding, and both alternative holdings are binding precedent.

Azmat: Affirming convictions of physican who prescribed drugs for "pill mill"

In U.S. v. Azmat, No. 14-13703 (Nov. 10, 2015), the Court affirmed convictions for unlawful dispensation of controlled substances, and conspiracy to money launder, of a physician who wrote prescriptions for Oxycodone to “patients” of a “pill mill.” The Court rejected Azmat’s argument that writing prescriptions did not qualify as “dispensing” drugs, citing contrary precedent, and the language of the drug trafficking statute. The Court also rejected Azmat’s challenge to the sufficiency of the evidence. As to the drug trafficking counts, the Court noted that “the patients looked like addicts or ‘zombies.’” As to the money laundering count, which charged the use of the proceeds from unlawfully dispensing controlled substances to promote the pill mill’s illegal activities, the Court noted that the patients paid for the drugs in cash, and the defendants used this cash to operate the illegal “clinic.” The Court also rejected Azmat’s Daubert challenge to the testimony of a government expert that Azmat’s prescribed controlled substances were “not medically legitimate.” The Court noted that the doctor’s expert testimony relied on published sources generally accepted by the medical community in defining the applicable standard of care. Turning to sentencing, the Court found no error in the district court’s calculation of drug quantity, which held Azmat accountable for all of the drugs he prescribed, noting the expert testimony that he did no prescribe any of the pills for a legitimate medical purpose. Finally, the Court rejected Azmat’s claim that his sentence created an unwarranted disparity in relation to the shorter sentences imposed on his accomplices, pointing out that the accomplices pled guilty, and that he was convicted of more crimes.

Toll: Accountant opinion testimony proper

In U.S. v. Toll, No. 13-14540 (Nov. 3, 2015), the Court affirmed fraud convictions arising out of a scheme to use a separate set of accounting statements to inflate a company’s value. The Court rejected the argument that the district court abused its discretion in allowing the company’s controller, who testified for the government, about whether he believed, when he created them, that the financial statements complied with accounting principles. Toll argued that the controller was not qualified as an expert witness. Even if some of the testimony was opinion testimony, it was admissible because it was based on the controller’s personal experience. The Court also rejected the challenge to the sufficiency of the evidence. The Court found that there was evidence that Toll knew that an accomplice was misrepresenting the financial strength of the company, and knew the other facts that were the basis for his multiple convictions.

Chafin: Fowler has overruled Veal

In U.S. v. Chafin, No. 14-10160 (Oct. 28, 2015), the Court affirmed a conviction of a Georgia sheriff, based on checks he drew from the prison commissary account to buy lottery tickets, for federal program embezzlement in violation of 18 U.S.C. § 666, but reversed a conviction for obstructing justice by hindering the communication of information about a potential federal offense to federal officials in violation of 18 U.S.C. § 1512(b)(3). The Court rejected the argument that there was insufficient evidence that Brooks County, Georgia received more than $10,000 in federal funds, an element of § 666. The Court interpreted the statute to exclude “bona fide salary” type payments by the federal government to an entity in the usual course of business. But the federal payments to Brooks County were not salary payments, but covered operating costs associated with the witness-advocate position in the sheriff’s office. Turning to the obstruction of justice conviction, the Court noted that in Fowler v. U.S. (2011), the Supreme Court held that the government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer. Reviewing for plain error, the Court found that Fowler overruled prior Circuit precedent, U.S. v. Veal. Consequently, the district court’s use of this prior Veal standard was reversible error. Had the district court applied the Fowler standard, the trial would have ended in an acquittal.

Espinosa: Unsuccessful motion for belated appeal does not toll one-year limitations period

In Espinosa v. Sec., Dep’t of Corrections, No. 14-10581 (Oct. 23, 2015), the Court held that the filing of an unsuccessful state petition for belated appeal of the denial of post-conviction relief does not toll the one-year statute of limitations for filing a federal habeas petition. The Court recognized caselaw that held that the filing of a petition for belated appeal that is granted by a state appellate court tolls the one-year limitations period. But here, the state appellate court denied the motion for a belated appeal, which put Espinosa in a “materially different” procedural posture.

Hernandez: Double Jeopardy doesn't preclude both forfeiture and restitution

In U.S. v. Hernandez, No. 15-11202 (Oct. 19, 2015), on a government appeal, the Court reversed the district court’s denial of the government’s civil forfeiture motion. The district court had denied forfeiture on the ground that it had also ordered Hernandez to pay restitution. But the Court noted that the district court not offset the amount of forfeiture by the amount of restitution, because both forfeiture and restitution were statutorily mandated. The Court rejected Hernandez’ argument that Double Jeopardy precluded ordering duplicative restitution and forfeiture. The Court noted that restitution is intended to make victims whole, while forfeiture is intended to punish a defendant by transferring his ill-gotten gains to the Department of Justice. In addition, restitution here was to the Social Security Administration, an entity separate from the Department of Justice.

Diveroli: Ovewhelming evidence defeats claim of ineffective plea advice

In Diveroli v. U.S., No. 14-11576 (Oct. 9, 2015), the Court rejected a § 2255 claim of a defendant convicted of fraud, who claimed that his attorney miscalculated his potential sentencing exposure and thereby caused him to plead guilty when instead he would have gone to trial. Diveroli claimed that his attorney told him that his sentencing exposure was 168-210 months, based on a loss amount up to $30 million, when in fact the exposure was 63-70 months under a correct loss amount, and that he would have proceeded to trial had it not been for the incorrect advice. The Court first dismissed the § 2255 appeal by Diveroli’s corporation, pointing out that § 2255 relief is limited to a prisoner in custody, and a corporation cannot be held in custody. Turning to Diverolis’ claim, the Court found that overwhelming evidence established that Diveroli was guilty of making false statements to conceal the Chinese origin of weapons he was selling to the United States Army. His defense was “patently frivolous.” Therefore, “Diveroli could not establish that it would have been rational to reject [the] plea agreement given its favorable terms and his near-certain conviction.”

Brantley: Misprison conviction affirmed

In U.S. v. Brantley, No. 13-12776 (Oct. 9, 2015), the Court affirmed the conviction of a defendant convicted of misprision of a felony, based on having concealed her boyfriend’s crime of being a felon in possession of a firearm (in an incident in which her boyfriend, Morris, shot and killed two police officers). The Court rejected Brantley’s claim that she was selectively prosecuted. A claim of selective prosecution requires a showing that it was motivated by a discriminatory purpose, and that similarly-situated individuals were not prosecuted. The Court rejected Brantley’s reliance on the fact that another person who hosted Morris was not prosecuted, pointing that two were aware of the crime at different times, and Brantley’s affirmative steps to conceal the crime through text messages and phone calls. The Court also noted the prosecution’s discretion to prosecute Brantley, pointing out that her prosecution “publicized the fact that those who conceal evidence about the capital murder of a police officer will be prosecuted.” The Court rejected the argument that her Fifth Amendment right to remain silent was violated by her prosecution, because she was free to remain silent about her own offense of fleeing the scene of a crime. The Court pointed out that Brantley was prosecuted for “affirmative acts of concealment,” not mere silence, acts such as hiding in a car and calling and texting Morris in order to conceal his crime. The Court rejected Brantley’s challenge to the sufficiency of the evidence, pointing out that she concealed the car that linked Morris to the unlawful possession of the murder weapon. The Court rejected Brantley’s challenge to the insufficiency of the jury’s special findings, pointing out that a general verdict of guilt sufficed.

Carpenter: No plain error in imposing lifetime computer restriction

In U.S. v. Carpenter, No. 14-13177 (Oct. 7, 2015), the Court affirmed a 97-month term of incarceration followed by a lifetime term of supervisory for a defendant convicted of possession of child pornography. Citing its prior decision in U.S. v. Cubero, the Court held that the Sentencing Commission’s 2012 Report critical of the child pornography guidelines did not heighten a district court’s need to explain why it was imposing a within-Guidelines sentence, or require a downward variance. The Court held that Carpenter “invited” the district court to impose a lifetime, having “repeatedly asked the court to impose a life term.” The Court noted that Carpenter did not say that a life term of supervised release was appropriate only if the sentencing court granted a downward variance. The Court added that this argument would have been unavailing because the length of a prison term has “no bearing” the need for subsequent supervision. In addition, on appeal, a defendant cannot complain of the result of a strategic decision. The Court also rejected Carpenter’s challenge to a ban on his possessing a computer or adult pornography. The Court noted that Carpenter did not raise this objection at sentencing, so the issue was reviewed for “plain error.” The Court noted that no prior case had prohibited a lifetime ban on the usage of a computer (outside the context of employment). There was therefore no plain error. There also was no precedent barring the restriction of all forms of pornography. The Court noted that the Circuits are split on this issue, and therefore there can be no plain error. In a footnote, the Court pointed out that the district court could shorten or terminate Carpenter’s supervised release.

Johnson: Upward variance justified by prior robberies

In U.S. v. Johnson, No. 14-13874 (Oct. 5, 2015), the Court affirmed the 102-month sentence of a defendant convicted of bank robbery. The Court affirmed the imposition of a six-level Guideline enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(B) for a firearm having been “otherwise used” during the robbery, instead of just a five-level enhancement for “brandishing” the firearm. After brandishing the pistol at the tellers, Johnson pointed the pistol at the tellers and demanded money without dye packs. Shortly thereafter, upon receiving the money and discovering that the tellers did include dye packs, Johnson stated: “I said I will kill you.” Therefore, Johnson’s use of the firearm to both implicitly and explicitly threaten the tellers amounted to “otherwise use[]” of the firearm. The Court also rejected a substantive reasonableness challenge to the upward variance from a Guideline range of 70-87 months to a sentence of 102 months. The district court reasonably found that the advisory guidelines range understated the seriousness of Johnson’s recent criminal history, which included participation in a string of eight armed robberies in a 14-month period, in which victims were held at gunpoint and feared for their lives. Johnson participated in these robberies within a couple of years of his release from federal prison on a 71-month sentence. Although Johnson was not convicted of these robberies, the district court was free to consider them under 18 U.S.C. § 3661.

Puentes: Rule 35(b) does not authorize reduction of restitution

In U.S. v. Puentes, No. 14-13587 (Oct. 5, 2015), the Court held that a district court lacks authority to reduce the amount it had ordered in restitution when it grants a reduction in sentence to a cooperating defendant pursuant to Fed. R. Crim. P. 35(b). The Court noted that, as its title suggests, the Mandatory Victims Restitution Act mandates restitution. Further, 18 U.S.C. § 3663A(a)(1) makes restitution mandatory “[n]otwithstanding any other provision of law.” In addition, § 3664(o) lists the ways a restitution order can be modified; Rule 35(b) is not on the list. The Court also noted that a “correction” of sentence under Rule 35 is not the same thing as the “reduction” of a sentence.

Denson: No 2255 relief for career offender

In Denson v. U.S., No. 14-10211 (Sept. 30, 2015), the Court rejected the claim of a movant under 28 U.S.C. § 2255 who claimed that his counsel was ineffective for failing to claim that his prior conviction for possessing a sawed-off shotgun in violation of Fla. Stat. § 790.221(1) did not qualify as a “crime of violence” under the career offender Guideline. The Court that this argument would have been “meritless,” because it ran counter to the express language of the Guidelines. Further, the argument would not have found support in the Supreme Court’s Begay decision, because Begay interpreted the Armed Career Criminal Act, and the Guideline commentary differed from this statute because it designated the possession of a short-barreled shotgun as a crime of violence. Finally, the Supreme Court’s recent decision in Johnson, which held that the residual clause of ACCA was unconstitutionally vague, did not affect Denon, because Matchett recently held that vagueness doctrine does not apply to the advisory sentencing guidelines, and because counsel is not ineffective for failing to predict new developments in the law.

Maddox: Accomplice's gun use was reasonably foreseeable

In U.S. v. Maddox, No. 14-15064 (Sept. 30, 2015), the Court affirmed the imposition of sentence enhancements on a defendant convicted of aiding and abetting an attempted armed robbery in violation of the Hobbs Act, based on the brandishing of a firearm by an accomplice, and injury caused by this accomplice. The Court reasoned: “once one concludes that the defendant knew that [his accomplice] was armed with a gun, it makes perfect sense that he could also reasonably anticipate that [the accomplice] might well show that gun to the person whom he was trying to force to hand over the store’s money. After all, isn’t that the primary purpose of brining a gun to a robbery? As to the injuries suffered by the store manager, . . . the defendant could also reasonably anticipate that his admittedly erratic co-conspirator might well use that gun, in some way, on anyone who thwarted his efforts to obtain the sought-after money. Thus . . . the district court’s determination regarding the reasonable foreseeability of the above acts does not give rise to a definite and firm conviction that a mistake has been made.”

Martin: Evidence Sufficient to support mortgage fraud

In U.S. v. Martin, No. 14-11019 (Sept. 30, 2015), the Court affirmed convictions for fraud arising out of fraudulently obtained mortgage loans, affirmed the sentence but reversed the restitution award. The Court rejected Martin’s challenge to the sufficiency of the evidence, noting her participation in a scheme involving her father’s submission of fraudulent income statements to lending institutions. The scheme “affected” a financial institution, even if a lender suffered no loss (by selling the loan to another institution), because the fraudulent statements resulted in “an increased risk of loss through default.” Turning to sentencing, the Court rejected Martin’s challenge to the denial of a minor role sentence reduction. The Court noted Martin recruited her father to participate in the scheme. With regard to restitution, the Court held that a “successor lender” can qualify as a “victim” for restitution purposes. The successor lender purchased the loan without an awareness of its true value, due to the fraud. The Court, however, recognized that the district court did not consider the actual purchase price that the successor lender paid for the loans. If this purchase price was less than the price at which the successor lender sold the loan, the successor lender would actually make a profit. The Court therefore remanded the case for recalculation of the restitution to be awarded, if any.

Pineda: Counsel not ineffective in not moving to suppress evidence

In Pineda v. Warden, No. 14-13772 (Sept. 21, 2015) the Court affirmed the denial of habeas relief to a Georgia inmate who claimed his lawyer was ineffective in failing to move to suppress cocaine found in a vacant apartment. The Court agreed with Pineda that the Georgia Court of Appeals incorrectly found that officers had a view of the vacant apartment that they later searched, because such a view was physically impossible. The Court also noted that counsel was not reasonable in believing that a motion to suppress the contents of the apartment would jeopardize a trial defense that Pineda did not live in the apartment and therefore could not have owned the cocaine. Evidence presented in a separate hearing on the search could not have been admissible at trial. But counsel was reasonable in believing that Pineda lacked standing to challenge a search of the apartment, because Pineda had abandoned it. Trial counsel knew that Pineda had not lived in the apartment for several weeks, had a new lease with his aunt at a new apartment, had given away his garage remote and had no access to the apartment. Counsel reasonably decided that Pineda lacked standing to challenge a search of the vacant apartment. Though counsel could have argued against abandonment, reasonable jurists could agree that counsel was not deficient in not perfecting a motion to suppress.

McLean: Insufficient Evidence of Jurisdictional element of federal bribery

In U.S. v. McLean, No. 14-00061 (Sept. 24, 2015), the Court rejected the government’s appeal of the district court’s grant of a judgment of acquittal for a defendant charged with bribery in violation of 18 U.S.C. § 666. The Court found insufficient evidence of the jurisdictional element of the statute, that an organization, here, the Margate Community Redevelopment Agency (“MCRA”) of which McLean was a Commissioner, receive in excess of $10,000 under a Federal program. The Court recognized that the City of Margate received federal funds and the City in turn provided funds to MCRA, and the County used federal funds to construct six bus shelters which were placed in MCRA’s care. But this “minimal” showing was insufficient to establish a relationship to the structure operation and purpose of a federal scheme. A mere “stimulus” package is not a federal program. The Court rejected the government’s argument that the jurisdictional element was a question of law, finding, to the contrary that it was a question of fact for the jury to find.

Matchett: Vagueness does not apply to Sentencing Guidelines

In U.S. v. Matchett, No. 14-10396 (Sept. 21, 2015) (Pryor, J. Carnes & Siler), the Court rejected the argument that the defendant was stopped in violation of the Fourth Amendment, and rejected the argument that the Guideline’s residual clause definition of a “crime of violence” was unconstitutionally vague in light of Johnson v. U.S. A police officer stopped Matchett when he saw him walking down a residential street holding an unboxed flat-screen television during the morning of a weekday. The Court held that because residential burglaries were common during work hours, commonly involved flat-screen tvs, and common in this neighborhood, the police officer had sufficient reasonable suspicion of illegal activity to stop Matchett. The officer also had reason to frisk Matchett once Matchett’s demeanor changed, and he looked left and right as if he was going to flee, and Matchett, while going through his pockets looking for identification, never touched his right front pocket (where he had a gun). Turning to sentencing, the Court affirmed the district court’s ruling that Matchett’s two prior convictions for burglary of an unoccupied dwelling were “crime[s] of violence” because they “involve[d] conduct that presents a serious potential risk of physical injury to another,” the residual clause of the Guidelines’ career offender provision. The Court explained that because the Guidelines are merely advisory, they cannot violate a defendant’s right to due process by being vague. The Court rejected the analogy to the Ex Post Facto Clause, which applies to the Guidelines, finding that it “in no way” informed the Due Process vagueness analysis. The Court noted the policy argument against applying a residual clause that “lacks precise meaning,” stating that this argument “is properly addressed to the Sentencing Commission.” The Court noted that no other Circuit has held that the Guidelines can be unconstitutionally vague [citing cases that all preceded the Supreme Court’s 2013 in Peugh, which held that the Ex Post Facto Clause applied to the advisory Guidelines]. The Court held that burglary of a dwelling creates the kind of risk that qualifies as a “crime of violence.” Finally, the Court affirmed the imposition of a two-level enhancement under U.S.S.G. § 3C1.2 for recklessly creating a substantial risk of death or substantial bodily injury, based on Matchett’s struggle with the police officer while a handgun was in his pocket. The Court noted the risk that the gun could have gone off accidentally. [Query: Was the panel correct that Ex Post Facto principles “in no way” guide the Due Process analysis, or could one reason that, since the Ex Post Facto Clause requires notice of advisory Guideline punishment at the time an offense is committed, the Due Process Clause in turn requires that this advance notice be clear?]

Harris: 2241 petition not permitted when 2255 was adequate

In Harris v. Warden, No. 14-14550 (Sept. 16, 2015), the Court affirmed the dismissal of a habeas petition filed under 28 U.S.C. § 2241, because a motion under § 2255 was adequate to test the legality of his conviction, and thus a § 2241 claim was not permitted. The Court noted that Harris’ claim was a constitutional claim and therefore cognizable under § 2255.

Slaton: Sentencing finding violated the "non-contradiction" principle

In U.S. v. Slaton, No. 14-12366 (Sept. 14, 2015), the Court affirmed convictions of a defendant who fraudulently obtained federal worker’s compensation from the Department of Labor by falsely claiming that a disability prevented him from resuming his duties for the U.S. Post Office. The Court rejected all of Slaton’s challenges to the sufficiency of the evidence, noting that Slaton’s ex-girlfriend testified that he drove to and from Alabama to Arkansas without any apparent difficulty, at a time when he was claiming that his back pain prevented him from making a 30 minute drive to work. Turning to sentencing issues, the Court agreed with the parties that the district court miscalculated the special assessment, because it counted certain misdemeanors as felonies. The assessment for a felony is $100 per count of conviction; the assessment for a misdemeanor is $20 per count. The Court agreed, in part, with Slaton’s claim that under the correct “net loss” Guideline approach to loss, Slaton might have been entitled to some of the medical benefits he received for his back injury. If there was error, the Court noted, it would only affect the restitution amount, since the loss amount for Guidelines purposes would not change the offense level. On cross-appeal, the government challenged the district court’s downward variance to zero months of incarceration. The Court noted that the district court relied on its finding that Slaton lost worker’s compensation to which he might arguably have been entitled. The Court noted that this finding contradicted the jury’s verdict on one count of conviction, which “necessarily found that [Slaton] was not entitled to the worker’s compensation benefits he received.” The sentencing court’s finding therefore violated the “non-contradiction principle” which holds that a district court’s finding at sentencing cannot be “inconsistent with any of the findings that are necessarily implicit in a jury’s guilty verdict.” The district court therefore vacated the sentence and remanded for resentencing, without expressing any view on whether the non-incarceration sentence might otherwise have been substantively reasonable.

Walker: Knock and talk exception applies

In U.S. v. Walker, No. 15-10710 (Sept. 3, 2015), the Court held that the “knock and talk” exception to the warrant requirement applied, and rejected the defendant’s claim that the search of his home violated the Fourth Amendment. The police approached Walker while he was inside his car, with the dome light on, at 5:00 am, inside his open-sided carport near his home. The police were authorized to knock on the car window and talk to Walker. The small distance from the front door of the home did not cause the entry to exceed the knock and talk exception. When the police saw a light on in the car, and lights on in the house, it was not unreasonable for them to tap on the vehicle and ask Walker to step out.

Hough: Defense counsel "opened the door" for question on character witnesses

In U.S. v. Hough, No. 14-12156 (Sept. 9, 2015), the Court affirmed convictions for making false statements to the IRS, but vacated the sentence. The Court rejected Hough’s challenge to the sufficiency of the evidence, finding sufficient evidence that she failed to disclose her financial interest in foreign bank accounts. The Court agreed with Hough that the prosecutor asked her character witnesses a question that presumed the defendant’s guilt, and that ordinarily such questions are improper. However, defense counsel had “opened the door” for these questions when he had asked these witnesses, on direct examination, whether their opinion of Hough’s character would change based on the allegations against her. Turning to sentencing, the Court found that, for tax loss calculation purposes, the district court failed to find “foundational facts” to support its conclusion that Hough’s entities should be treated as partnerships, instead of corporations. The Court therefore remanded for resentencing.

Hesser: Affirming tax evasion conviction

In U.S. v. Hesser, No. 13-11712 (Sept. 8, 2015), the Court affirmed convictions for submitting false claims to the IRS, and for tax evasion, but reversed the restitution order because it included amounts that Hesser still owed for tax deficiencies, but which the IRS had not actually lost. Reviewing the challenges to the sufficiency of the evidence only for a "manifest miscarriage of justice" because Hesser at trial failed to move for a judgment of acquittal, the Court found sufficient evidence, particularly from Hesser's own trial testimony, to support the convictions. Reviewing the claimed trial errors only for "plain error" because Hesser at trial failed to object, the Court found no grounds to reverse. The Court did not "condone" the prosecutor's misleading statement that Hesser relied on a disbarred attorney for advice, but found that this isolated remark did not affect Hesser's substantial rights. Turning to sentencing, the Court rejected Hesser's challenge to the imposition of an obstruction of justice enhancement. The Court affirmed the trial court's finding that Hesser improperly attempted to influence his wife's testimony before she testified for the government at his trial.

Cunningham: 3583(h) does not govern incarceration for revocation of supervised release

In U.S. v. Cunnigham, No. 14-14993 (Sept. 2, 2015), the Court rejected the argument that 18 U.S.C. § 3583(h) limited the length of term of incarceration that a district court could impose on a defendant who violated his supervised release. The Court found that § 3583(h) places a cap on post-revocation supervised release so that a defendant is not at risk for an unlimited cycle of imprisonment and supervised release. However, § 3583(e)(3) places a felony class limit (here, two years) on the length of imprisonment a district court can impose on revocation of supervised release. The two provisions apply “harmoniously.”

Martinez: Indictment for 875(c) violation defective post-Elonis

In U.S. v. Martinez, No. 11-13295 (Sept. 3, 2015), on remand from the Supreme Court for consideration in light of Elonis v. U.S., the Court reversed its earlier holding and remanded the case with instructions to the district court to dismiss the indictment without Martinez. The indictment charged Martinez with making a threat to injure another person, in violation of 18 U.S.C. § 875(c). Martinez moved the dismiss the indictment, because it failed to allege that she subjectively intended to convey a threat to injure others. The district court denied the motion, and the Court affirmed. The Court noted that Elonis held that to violate § 875(c), a person must subjectively intend to convey a threat. Whether a “reasonable person” regards the communication as a threat does not suffice. Because Martinez’ indictment failed to allege that she subjectively intended to convey a threat, and because, post-Elonis, this is an essential element of § 875(c), the indictment was deficient.

Braun: Prior Batteries do not qualify under ACCA

In U.S. v. Braun, No. 13-15013 (Sept. 8, 2015), the Court held that because two of the defendant’s prior convictions did not qualify as “violent felonies” under ACCA, the district court erred in imposing ACCA’s mandatory minimum sentence. One of the prior convictions relied on by the district court was a conviction for aggravated battery on a pregnant woman, in violation of Fla. Stat. § 784.045(1)(b). This was a “divisible” statute, because one could violate it by “touching,” or by “striking,” a pregnant woman. The government noted that in a later unrelated case, Braun failed to object to a Presentence Investigation Report that stated that this offense involved “pushing” and “choking” the victim. But the Court held that a Presentence Report in another case was not a Shepard document – not a document that the district court could rely on in determining whether a prior conviction counted as a “violent felony” under ACCA. Thus, the district court erred in relying on this Presentence Report. And because a conviction is presumed to rest upon no more than the least of the acts criminalized, here, mere “touching” did not qualify as a “violent felony.” The Court found that, as to Braun’s prior conviction for battery on a police officer, the Shepard documents only allowed it to conclude that Braun “touched” a police officer. Thus, the Court distinguished its prior decision in U.S. v. Turner, and concluded that Braun’s battery on a police officer did not qualify under ACCA.

Zelaya: 2241 relief not avalaible in the circumstances

In Zelaya v. Sec., Fla. Dept. of Corrections, No. 12-16462 (Aug. 24, 2015), the Court held that a district court committed no error in deciding not to recharacterize Zelaya’s habeas petition under 28 U.S.C. § 2241 as a § 2255 motion. The Court noted that Zelaya made a strategic choice to file a petition under § 2241, and the district court was not obliged to consider the costs and benefits of the alternative approach. The Court ruled that Zelaya’s § 2241 petition was not cognizable under the savings clause of § 2255(e) because his claim, namely that his illegal reentry conviction was pursuant to an unlawful deportation order, was never foreclosed by Circuit precedent. Zelaya’s claim that he was actually innocent did not entitle him to proceed under § 2241 instead of § 2255. The Court remanded the case to the district court, with instructions to dismiss his petition without prejudice.

Feaster: VA Theft is Felony not Misdemeanor

In U.S. v. Feaster, No. 14-13978 (Aug. 25, 2015), the Court rejected the defendant’s argument that her convictions for theft under 18 U.S.C. § 641 should have been misdemeanors, not felonies. The Court noted that under the statute, a punishment of less than one year only applies if the aggregate amount of all counts of conviction did not exceed $1,000. The fact that one count of conviction was for less than $1,000 does not entitled a defendant to have a conviction become a misdemeanor. The Court also rejected Feaster’s challenge to the “sophisticated means” sentence enhancement. The Court noted the totality of the scheme, including the two years for which the conduct was not detected. Feaster used her inside information and her position at the Veterans Administration to perpetrate the fraud. She prepared a fraudulent purchase order to obtain approval to use a government authorized Purchase Card. She obscured her personal purchases by using the Purchase Card. She made fictitious entries in the VA’s system to reconcile the original purchase order with the amount of money she had charged on the Purchase Card.

Hill: Resisting an officer with violence qualifies under ACCA elements clause

In U.S. v. Hill, No. 14-12294 (Aug. 26, 2015), the Court, affirming a conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), found no error in a district court’s denial of a defendant’s request to add the word “knowingly” to its jury instruction on “constructive possession.” The Court found that the district court’s instruction impliedly required that Hill knowingly possess the firearm. On a cross-appeal by the government of the district court’s finding that two prior convictions did not qualify as “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), the Court agreed with Hill that this argument was foreclosed in light of the Supreme Court’s recent Johnson decision. However, the Court (sua sponte: the government did not raise this point on cross-appeal) found that one prior conviction, for resisting an officer with violence, in violation of Fla. Stat. § 843.01, qualified under ACCA’s elements clause. The Court therefore remanded the case for the district court to consider whether the prior Fla. Stat. § 843.01 conviction, coupled with two prior drug offenses, might qualify Hill for a sentence under ACCA.

Maiello: Delay of Amendment 782 to November 2015 is valid

In U.S. v. Maiello, No. 15-10532 (Aug. 19, 2015), the Court held that a drug offender subject to an Amendment 782 sentence reduction was not eligible to immediately benefit from the reduction because of the Sentencing Commission’s decision to delay any release until November 2015. The Court rejected the argument that the Sentencing Commission improperly considered offenders’ rehabilitation in its delay decision, in violation of Tapia v. U.S. The Court noted that Tapia applied to a decision to impose a sentence, not to a decision to reduce a sentence under 18 U.S.C. § 3582(c). The Court also rejected the argument that the Commission’s delay decision violated the Administrative Procedure Act, pointing out that policy statements of the Commission are not subject to the APA. The Court also found that the Commission’s decision was reasonable, not arbitrary and capricious. Finally, the Court rejected the argument that the Commission’s delay decision encroached on the judicial power. The Court noted that Congress delegated to the Sentencing Commission the power to specify the circumstances under which sentences may be reduced.

Sperrazza: Structuring need not involve a "cash hoard"

In U.S. v. Sperrazza, No. 14-11972 (Aug. 17, 2015), the Court affirmed convictions of tax evasion and structuring currency transactions, and a forfeiture order of $870,238.99 on a Georgia physician. The Court (2-1) rejected the argument that a “structuring” violation must involve a defendant who has more than $10,000 on hand (a “cash hoard”). The Court explained that a person who has $9,000 on hand, and knows more cash is on the way, and deposits the $9,000 to evade the $10,000 reporting requirement can be guilty of “structuring.” The Court also rejected Sperrazza’s claim that the $870,238.99 forfeiture violated the Excessive Fines Clause of the Eighth Amendment. The Court noted that under the statute the defendant was subject to a fine of up to $500,000. The Court also rejected the argument that the forfeiture was excessive because Sperrazza earned the money lawfully. The Court pointed out that the structuring “decreased the likelihood the IRS would detect the underlying tax evasion.”

Willner: Deliberate Ignorance Instruction Proper

In U.S. v. Willner, No. 12-15322 (Aug. 3, 2015), the Court reversed a medicare fraud conspiracy conviction for insufficient evidence, but otherwise affirmed convictions arising out of a scheme that submitted in excess of $200 million in fraudulent claims. As to one convicted co-conspirator, the Court noted the absence of any direct evidence of her participation in the conspiracy, and rejected as too weak the inferences the government attempted to draw from circumstantial evidence. The Court rejected other defendants’ argument that they should have been a theory-of-defense instruction based on Florida law, finding that this law did not have influenced the jury based on the way the government presented its case. Joining the majority of circuits to have considered the issue, the Court held that it was proper to give a jury a deliberate ignorance instruction with regard to whether a defendant knew the unlawful purpose of a conspiracy, without giving this instruction to whether the defendant willfully joined in the conspiracy. The Court found that the district court abused its discretion when it allowed a government witness to give opinion testimony, and when it not allowing the defense to cross-examine this witness about the basis for his opinions. However, the error was harmless in light of the overwhelming evidence of guilt.

Puentes-Hurtado: Claims reviewable on appeal despite appeal waiver

In U.S. v. Puentes-Hurtado, No. 13-12770 (July 22, 2015), the Court held that an appeal waiver in a plea agreement did not bar a subsequent appeal on a claim that the plea was involuntary because counsel rendered ineffective assistance, because the government breached the plea agreement, nor on a claim that there was an insufficient factual basis to support the plea – such a claim goes to whether the guilty plea is enforceable. The Court declined to reach the ineffective assistance of counsel claim, finding the record insufficiently developed, and noting that the defendant could file a motion to vacate under 28 U.S.C. § 2255. Reviewing the issue for “plain error,” the Court found that even if the defendant only admitted to physically transporting the drug proceeds, this sufficed to support his guilty plea for a narcotics distribution conspiracy. Again reviewing for “plain error,” the Court found that even if the government breached the plea agreement by presenting drug quantity evidence that supported a higher sentence, the district court would have imposed the same sentence even based on a lower drug quantity. The defendant failed to establish a reasonable probability that the district court would have imposed a lower sentence.

Khan: Defense ran the risk that video conferencing witnesses would fail

In U.S. v. Khan, No. 13-14048 (July 23, 2015), the Court affirmed convictions for providing material aid to terrorists. The Court rejected the challenge to a translator’s use of bracketed words to explain the meaning of intercepted telephone conversations. The Court found that the bracketed words appropriately transported “living thoughts” from one language to another. The Court also rejected challenges to rulings made during the testimony of the government’s case agent. The Court found that any error in admitting as expert testimony the case agent’s non-expert testimony about the meaning of words used in conversations was harmless, in light of other testimony on the same topic. Though acknowledging that prosecutors should not permit investigators to give “overview testimony” about the results of a criminal investigation, the Court found that the case agent testified based on his personal knowledge of recorded conversations. The Court found no error in the limitation of cross-examination about a government informant, finding that the topics were irrelevant, or merely aimed to bolster the defendant’s credibility, not to undermine a witness’s credibility. The Court found no error in not allowing the defense to cross-examine the case agent about a Pakistani police report that purportedly exonerated Khan. The report was not in evidence, and offered no conclusions, but simply relayed hearsay statements. During the trial, the video-conference testimony of defense witnesses from Pakistan ceased when internet connection failed, most likely as the result of Pakistan police interference. The district court denied a defense request for a continuance to obtain the testimony. The Court found that the defense elected to run the risk that, in failing to obtain Pakistan government approval for the depositions, the depositions would be shut down. Moreover, it was undetermined how long it would take to re-establish internet connection.

Hamilton: Appeal of Denial of 60(b) motion requires COA

In Hamilton v. Sec., Fla. Dep’t of Corrections, No. 14-13535 (July 15, 2015), the Court held that a habeas petitioner who appeals the denial of Rule 60(b) motion is required, like a petitioner who appeals the denial of habeas relief under 28 U.S.C. § 2255, to obtain a Certificate of Appealability (“COA”) in order for the Court of Appeals to consider the appeal. The Court rejected Hamilton's argument that intervening Supreme Court cases called into question the Circuit precedent that required a COA in order for a habeas petitioner to appeal the denial of a Rule 60(b) motion – and the denial of a Rule 59(e) motion. Turning to whether Hamilton, a death row inmate, was entitled to COA, the Court held that he was not, finding his arguments “squarely foreclosed” by Circuit precedent.

Aunspaugh: Erroneous "Honest Services" Jury Instruction

In U.S. v. Aunspaugh, No. 12-13132 (July 8, 2015), the Court reversed convictions for mail fraud because of erroneous jury instructions on what constitutes “honest services.” The case involved an Electric Cooperative whose general manager steered contracts to a company that hired one of the Cooperative’s employees to do the work, and made secret payments to the general manager for this arrangement. The Court found that the evidence supported a finding of a “kickback,” and not a merely egregious conflict of interest, for purposes of the “honest services” fraud statute. However, the jury instructions erroneously did not require the jury to acquit on a finding that the scheme involved only self-dealing, not kickbacks. The Court therefore reversed the conviction, even though the evidence supporting the defense theory was “weak.” Because the money laundering conviction was predicated on the honest fraud conviction, the Court vacated this conviction as well. The Court, however, affirmed the structuring transaction convictions. The Court found that a defendant cashed checks for amounts just below the reporting requirements. The Court noted that the less serious of the two structuring statutes does not require the violation of another law. In light of its vacatur of other convictions, the Court vacated the sentence on the remaining structuring count, noting that the sentence “may not have been the same” without the other convictions.

Ruggierio: No age of victim knowledge required for unlawful production of child pornography

In U.S. v. Ruggiero, No. 13-14773 (June 30, 2015), the Court rejected the argument that 18 U.S.C. § 2251(a) was unconstitutional because it does not require the government to prove, for the offense of producing child pornography, that a defendant knew the victim was a minor. The Court noted that while scienter is generally an element of a crime, there is an exception for sex offenses, where crimes like rape do not require knowledge of the age of the victim. The Court also noted that producing child pornography is not the type of “wholly passive” crime for which mens rea can be required. The Court stated: “We have no doubt that a person of ordinary intelligence would know, upon reading § 2251(a), that it prohibits persuading a 15-year old to engage in sexually explicit conduct for the purpose of photographing her with a cell phone camera that has traveled in foreign commerce.”

Williams: "False" is distinct from "Fictitious"

In U.S. v. Williams, No. 13-13042 (June 22, 2015), the Court held that the use of fake checks bearing the account and routing numbers of another person’s bank account qualified as passing a “false or fraudulent” instrument under 18 U.S.C. § 514. The Court rejected the argument that “false and fictitious” referred to non-existent types of instruments, such as a three-dollar bill. The Court noted that the term “false” was distinct from the term “fictitious.” The Court noted Williams’ argument that he could have been prosecuted under a separate “counterfeited” security statute, noting that a defendant can be prosecuted for similar conduct under separate statutes. The Court also rejected Williams’ challenge to his conviction under 18 U.S.C. § 1029 for unauthorized use of an “access device,” finding that a bank routing number plainly qualified as an access device. Finally, the Court rejected Williams’ argument that his offense of violating his terms of supervised release did not qualify as a “failure to appear” offense under 18 U.S.C. § 3146(b).