Phillips: Civil writ of bodily attachment is valid warrant under Fourth Amendment

In U.S. v. Phillips, No. 14-14660 (Aug. 23, 2016), the Court held that, under the Fourth Amendment, the police can validly arrest a person based on a civil writ of bodily attachment for unpaid child support. The Court noted that the Fourth Amendment requires a warrant to be “particular, sworn, and supported by probable cause.” The Florida writ in Phillips’ case met these requirements because it issued only after a person was found liable by a preponderance of the evidence for civil contempt for failure to pay child support. The Court rejected the argument that the warrant must be based on a crime, as opposed to a civil offense, pointing out that bench warrants based on civil contempt have been held not to present a problem under the Fourth Amendment. The Court also noted that even if material witness warrants might not satisfy the Fourth Amendment, this would not affect the decision because writs of bodily attachment, like bench warrants, are based on a “violation of law” – here, civil contempt. Turning to sentencing, the Court held that Phillips had waived his challenge to his 15-year sentence as an armed career criminal, because his plea agreement stated that he understood that the district court “must” impose a sentence of no less than 15 years, and at sentencing he affirmatively asked the district court to sentence him to 15 years.

Clay: Affirming health care fraud convictions

In U.S. v. Clay, No. 14-12373 (Aug. 11, 2016), in a 124-page opinion, the Court affirmed convictions of defendants convicted, after a three-month trial, of filing false Medicaid expense reports. After a length recitation of the facts, the Court rejected challenges to the sufficiency of the evidence. The Court found “abundant” evidence of false expenses, noting that the firm’s own forensic accountant testified that reported expense amounts were false. The Court found that Florida’s “80/20” law, and implementing contracts, mandated that 80% of the premium paid to a health plan must be expended for health care services, and could not count as administrative expenses or overhead. The defendants submitted false reports to avoid these mandated requirements, and knew their reports were false. The Court also affirmed the convictions for making false statements to federal agents. The Court also rejected a challenge to jury instructions. The defendants argued that the jury instruction regarding their “deliberate indifference to the truth” lowered the standard to recklessness, instead of an intent to defraud. The Court found that the instruction linked “deliberate indifference” to “intent to defraud.” Further, the trial proceeded under a theory of actual knowledge rather than deliberate indifference. The Court also rejected the defendants’ challenge to the district court’s ruling that their compensation could be admitted in evidence. The Court noted that the district court instructed the jury that the defendants’ wealth had nothing to do with their guilty, but was admitted only to show their “financial motive” to commit the charged frauds. The Court also rejected a challenge to the admissibility of a restated financial statement, generated while the company was under investigation.

Parker: Baptiste bars SOS grant for applicant whose application was previously denied

In In re: Leslie Parker, No. 16-13814-J (Aug. 10, 2016), the Court reversed its earlier grant of an application to file a second or successive § 2255 motion. A member of the panel which had earlier granted Parker’s application learned of a conflict requiring recusal. As a result, the Court had to decide the request anew. Since its earlier grant, the Court had decided In re Baptiste, which held that it must dismiss an application from a prisoner, like Parker, whose prior request had previously been denied. The Court therefore now denied Parker’s application. [Rosenbaum and Jill Pryor, concurred but stood by their view that Baptiste “is incorrect as a matter of law.”].

Devon Chance: Granting SOS to 924(c)/Hobbs Act conspiracy applicant

In In re: Devon Chance, No. 16-13918-J (Aug. 8, 2016) (Tjoflat, Wilson, Jill Pryor), the Court granted an application for leave to file a second or successive § 2255 motion to an applicant who was convicted under 18 U.S.C. § 924(c). The Court noted that the predicate offense for the § 924(c) offense was conspiracy to violate the Hobbs Act. As in In re Pinder, the law is “unsettled” as to whether this companion conviction was valid, post-Johnson. The Court recognized that Chance received concurrent sentences on substantive Hobbs Act robbery offenses, offenses that are still valid § 924(c) predicates post-Johnson. However, the sentences were not “fully concurrent” because the $100 fines on each count were cumulative. Chance therefore had at least a pecuniary interest in the review of his sentence. Further, as in In re Davis, the terms of incarceration were not dictated by a mandatory minimum. For these reasons, the concurrent sentence doctrine that the Court applied in In re Williams did not apply here. The Court then addressed the Court’s recent statement in In re Jasper Moore that “the district court cannot grant relief in a § 2255 proceeding unless the movant . . . proves that he was sentenced using the residual clause.” Though recognizing that its own discussion of Moore was dicta, the Court stated that this statement in Moore was dicta, because it was necessary to the decision to grant an SOS application. The Court added that the statement in Moore was “quite wrong.” First, the statement implied that a district court deciding a § 2255 motion “can ignore decisions from the Supreme Court that were rendered since that time in favor of a foray into a stale record.” But cases like Descamps and Mathis are binding. If the district court determined that Hobbs Act conspiracy does not qualify under the elements clause, in light of Descamps and Mathis, then that would be conclusive proof that the defendant was wrongfully sentenced under the residual clause – regardless of whether the district court “uttered the magic words ‘residual clause.’” Second, eligibility under § 2255 should be based solely on “a chance remark.” Quoting Rivers v. Roadway Express, Inc., the Court noted that a judicial construction of a statute is an authoritative statement of what the statute meant “before as well as after the decision of the case giving rise to that construction.”

Nejad: No habeas relief for Georgia inmate who claimed he was not told about his right to testify

In Ali Nejad v. Warden, No. 15-14856 (July 27, 2016), the Court denied habeas relief to a Georgia inmate who claimed that his trial lawyers in his Georgia state rape trial were ineffective in failing to advise him that he could testify in his own defense despite counsel’s advice to the contrary. The Court noted that the transcript of the trial did not indicate that the trial judge informed Nejad of his right to testify. Nonetheless, noting that there were gaps in the transcript, and crediting the prosecutor’s testimony that she definitely remembered that Nejad was informed by the judge of his right to testify because it was her first rape trial and she was getting ready to cross-examine the defendant and was relieved when he answered the judge that he would not testify, the Court deferred to the State trial court’s determination, in the face of conflicting testimony, that Nejad knew he could testify regardless of the advice of his attorneys.

Jones: Denying SOS based on Baptiste

In In re Kiwanis Jones, No. 16-14053-J (July 27, 2016), the Court denied an application to file a second or successive § 2255 motion, because the defendant had previously filed a “nearly identical Johnson-based” application that had been denied. Based on Baptiste, the Court was bound to dismiss the latest application, because it raised the same claim that was previously rejected. [Judges Rosenbaum and Jill Pryor, concurring, stated that Baptiste was wrongly decided.]

Bradford: Denial of SOS application is jurisdictional

In In re Brad Bradley Bradford, No. 16-14512-J (July 27, 2016), after the Eleventh Circuit denied a post-Johnson application for leave to file a second or successive § 2255 motion, Bradford filed another application, presenting the same claim. The Court held that it lacked jurisdiction to consider an application “premised exclusively on a claim that was presented in a prior application.” The Court recognized that it might have previously ruled on applications presented a second time. But these cases did not address the jurisdictional bar, and were therefore not binding on the jurisdictional issue. Citing Anderson and Baptiste, the Court held that a dismissal of a successive application is “with prejudice.” The Court noted the caselaw that holds that when it denies a successive application, the district court lacks jurisdiction to consider the § 2255 motion. The Court denied Bradford’s application. The Court stated that the grant of certiorari in Beckles was not a basis for granting a successive application, or holding a case in abeyance. The Court stated: “If the Supreme Court decides in Beckles, or some other decision, that the residual clause of § 4B1.2(a)(2) of the career offender provisions of the guidelines is unconstitutional, Bradford will have a new claim under § 2255(h)(2) for which he can then file an application to file a second or successive § 2255 motion. It will not be a Johnson/Welch claim, but a Beckles claim.” The Court therefore denied Bradford’s request that his application be held in abeyance pending Beckles.

Moore: SOS application granted when it was "unclear" whether sentence rested on residual clause

In In re Jasper Moore, No. 16-13993-J (July 27, 2016), the Court granted an application for leave to file a second or successive § 2255 motion because it was “unclear” whether at his sentencing the district court had relied on the residual clause of ACCA. The Court noted that this was merely because Moore had made a prima facie showing; in the district court, he would bear the burden of proving that his sentence was unlawful. A movant cannot meet this burden “unless he proves that he was sentenced using the residual clause and that the use of that clause made a difference in the sentence.” [Query: Would one way a movant be able to meet his burden be by showing that his prior conviction does not qualify under the elements or enumerated clauses, and that his sentence must therefore rest on the now-unconstitutional residual clause?]

Sams: SOS denied for 924(c) offender with predicate 2113(a) bank robbery

In In re Sams, No. 16-14515-J (July 26, 2016), the Court denied an application for leave to file a second or successive § 2255 motion for an applicant who challenged his conviction under 18 U.S.C. § 924(c). The predicate offense for Sams’ 924(c) conviction was a bank robbery “by force and violence, or by intimidation,” in violation of 18 U.S.C. § 2113(a). The Court held that a bank robbery “by intimidation” qualifies as a crime of violence, because it involves the threat to use physical force. The Court also rejected Sams’ challenge to his career offender Guideline designation. The Court pointed out that even if Johnson were to apply, retroactively, to the career offender guideline, this would not benefit Sams, because he had two prior convictions that qualified under the elements clause.

Birge: Affirming imposition of "vulnerable victim" enhancement

In U.S. v. Birge, No. 15-15042 (July 26, 2016), the Court affirmed the imposition of a “vulnerable victim” sentence enhancement, pursuant to U.S.S.G. § 3A1.1(b)(1), for a chief clerk of a Georgia probate court who used access to bank accounts through probate court to conservatorships of minors and incapacitated adults to write herself checks. Birge argued that the “vulnerable victim” enhancement should apply, because Eleventh Circuit caselaw indicated that the guideline applied to persons who “target” a vulnerable victim, and there was no evidence that she had done so. The Court pointed out that while an older version of the Guideline had used the word “target,” it was amended to now read that it applies to a person who knew or should have known that the victim was vulnerable. The Court found that its prior discussion of “target” was dicta, because none of them involved a defendant who was not eligible for the enhancement unless he targeted victims. Here, because Birge knew or should have known that the victims of her scheme were vulnerable, the enhancement applied.

Gomez: Granting SOS to 924(c) applicant

In In re: Emilio Gomez, No. 16-14104-J (July 25, 2016), the Court granted an application to file a successive § 2255 application an inmate who was sentenced under 18 U.S.C. § 924(c). The Court recognized that when the law is “unsettled” on the question whether Johnson might invalidate the residual clause of § 924(c), it grants a successive application. Here, the indictment’s § 924(c) count was unclear on whether Gomez used a firearm during an attempted Hobbs Act robbery, during a conspiracy to commit Hobbs Act robbery, or during a drug trafficking offense. The Court therefore did not know what the predicate § 924(c) crime had been. The Court had previously in Pinder granted a successive application when the predicate was conspiracy to commit Hobbs Act robbery. Further, the Court had yet to decide whether attempted Hobbs Act robbery is a “violent felony” under ACCA. The Court therefore left the issue for the district court to decide in the first instance.

Anderson: SOS claim based on mandatory guidelines dismissed with prejudice until Beckles is decided

In In re: Wayne Anderson, No. 16-14125 (July 22, 2016), the Court (2-1) denied an application for leave to file a second or successive § 2255 motion, filed by a defendant sentenced in 1995 under the then-mandatory career offender Guideline. The Court recognized that in Beckles, the Supreme Court will decide whether the residual clause of the career offender Guidelines is unconstitutionally vague, and if the Supreme Court so rules, Anderson will be able to file another SOS application. However, until the Supreme Court so rules, the denial of Anderson’s SOS application was with prejudice. [Martin, J., dissenting, would have granted the application in light of the pending Beckles case, to avoid forcing Anderson to refile an application. Martin also disagreed that the denial of an SOS application can be “with prejudice,” reasoning that there is no rule against filing multiple applications to file a successive § 2255 petition.]

Antrone Davis: Concurrent sentence does not foreclose granting SOS application

In In Re: Antrone Davis, No. 16-13779-J (July 21, 2016), the Court (2-1) granted an application for leave to file a second or successive § 2255 motion. One of Davis’ prior convictions was for burglary of a car, an offense which did not meet the definition of burglary of a building or structure required to qualify under ACCA. The majority recognized that Davis was serving a 327-month ACCA sentence and a concurrent 327-month sentence for drug trafficking. The majority further recognized that in In Re Williams, it had recently denied an SOS application because the defendant was serving a concurrent sentence. The majority distinguished In Re Williams because the concurrent sentence in that case was “unrelated” to the ACCA sentence, and it was a mandatory [statutory] life sentence [pursuant to 21 U.S.C. § 841(b)(1)(A), for drug traffickers with two or more prior felony drug offenses]. Here, by contrast, the sentence on the drug trafficking count was not “unrelated” to the ACCA count, because the sentencing judge sentenced Davis “based on a single Sentencing Guidelines range.” “The judge’s sentencing decision was therefore no doubt informed by Davis’s ACCA designation, which means Davis may have suffered ‘adverse collateral consequences’ if his ACCA sentence turns out to be unlawful.” [Dissenting, Jill Pryor, J., pointed out that Davis’ concurrent 327-month sentence was based on the career offender Guideline, which requires only two prior qualifying felonies. Davis had two prior qualifying felonies (it was his third felony, for burglary, that was not valid ACCA predicate). Both of these prior felonies qualified under ACCA (and the career offender Guideline). Thus, even if the residual clause of the career offender Guideline was unconstitutional, Davis’ concurrent 327-month sentence would be “unaffected.” Judge Pryor did not interpret In re Williams to be limited to concurrent sentences that were mandatory. A concurrent sentence, even if not mandatory, would be valid and not affected by Johnson.]

Burgest: Career Offender not eligible post-Johnson

In In Re: Earl Burgest, No. 16-14957-J (July 21, 2016), the Court denied a career offender’s application for leave to file a second or successive § 2255 motion. The Court noted that in In Re Griffin it had already held that career offenders do not qualify for post-Johnson § 2255 relief. The Court added that even if Johnson applied to a career offender, it would not entitle Burgest to relief, because his prior convictions for manslaughter, and kidnapping, were enumerated as qualifying prior felonies in the career offender Guideline. This provision would govern regardless of whether the Guidelines residual clause was unconstitutional.

Clayton: No SOS grant post-Matchett for career offender

In In Re: Charles Clayton, No. 16-14556-J (July 18, 2016), the Court, citing U.S. v. Matchett, summarily denied an application for leave to file a second or successive § 2255 motion filed by a defendant sentenced as a career offender under the Sentencing Guidelines. [In a lengthy concurrence, Martin, J., noted that outside the Eleventh Circuit “[e]very other court of appeals has either held or assumed that Johnson makes the language [of the career offender guideline’s residual clause] unconstitutional.” Martin noted that the requirement of “fair notice” applied to the Guidelines by the Supreme Court in Peugh under the Ex Post Facto Clause also applied in a vagueness-Due Process analysis. Martin further noted the Court’s inconsistent treatment in its recent SOS decisions on whether and when Descamps applies to determining the validity of an ACCA sentence, post-Johnson, even though all of these SOS decisions “set binding precedent.”].

Dean: Denying SOS for 924(c) defendant with assault predicate

In In re: Sheldon Dean Christopher Watt, No 16-14675-J (July 21, 2016), the Court denied an application for leave to file a second or successive § 2255 application, filed by a defendant convicted under 18 U.S.C. § 924(c) who claimed that his predicate conviction for this offense was no longer valid, post-Johnson. The Court noted that § 924(c) has an elements clause. Watt’s prior conviction was for assault with intent to rob a Postmaster and in so doing putting the life of the person in jeopardy by use of a firearm, in violation of 18 U.S.C. § 2114. It did not matter that Watt was charged with aiding and abetting because the acts of a principal become those of the aider and abettor. Further, the presentence investigation report, whose factual statements the district court adopted without objection, described how Watt pointed a firearm at the victim and made her lie on the floor while he fled. Thus, even if the residual clause of § 924(c) was void for vagueness, Watt’s predicate offense qualified as a “crime of violence.”

Jeffrey Smith: Denying SOS to 924(c) defendant convicted of carjacking

In In re: Jeffrey Smith, No. 16-13661 (July 18, 2016), the Court denied leave to file a second or successive § 2255 motion to a defendant sentenced under 18 U.S.C. § 924(c), who claimed that this statute’s residual clause was unconstitutionally vague, and that his carjacking conviction, in violation of 18 U.S.C. § 2119, did not meet the requirements of this statute’s force clause. Interpreting its 1994 decision in U.S. v. Moore, the Court held that carjacking involving taking or attempting to take by force and violence or by intimidation, and this meets the force clause, which requires the use, attempted use, or threatened use of physical force. [Jill Pryor, dissenting, argued that Moore could be interpreted to have relied on the residual clause of § 924(c), not its force clause, particularly in light of the Supreme Court’s 1999 decision in Holloway v. U.S.].

Hunt: SOS career offender may be able to file post-Beckles

In In re: William Hunt, No. 16-14756-J (July 18, 2016), the Court denied an application for leave to file a second or successive § 2255 motion, pointing out that Hunt was sentenced as a career offender under the Sentencing Guidelines, and that the Eleventh Circuit in Matchett held that the residual clause of the career offender Guideline is not void for vagueness. The Court recognized, however, that the Supreme Court recently granted certiorari in Beckles, a case “which raises the question of whether Johnson applies to the Guidelines. Should Beckles abrogate our decision in Matchett, Hunt may be able to file a § 2255 petition based on Johnson.” [Wilson, Jill Pryor and Rosenbaum, JJ., each concurring, set forth their reasoning on why Matchett was wrongly decided].

Baptiste: Denying renewed SOS application

In In re: Gary Baptiste, No. 16-13959-J (July 13, 2016), the Court denied Baptiste’s second or successive post-Johnson § 2255 motion that claimed that the residual clause of 18 U.S.C. § 924(c) was unconstitutionally vague. The Court noted that it had previously denied Baptiste’s SOS application, and Baptiste was raising “precisely the same claim that he raised in round one.” “It would be odd indeed if Congress had intended to allow federal petitioners to refile precisely the same non-meritorious motions over and over again while denying that right to state prisoners.” Because the Court “previously rejected” Baptiste’s claim on the merits, it was required to dismiss this one. The AEDPA does not permit a prisoner “to file what amounts to a motion for reconsideration under the guise of separate and purportedly ‘new’ application when the new application is the same as the old one.” The law of the case doctrine barred a different result for the new application.

Takhalov: Convictions reversed in B-Girls case

In U.S. v. Takhalov, No. 13-12385 (July 11, 2016), the Court reversed wire fraud and other related convictions arising out of the South Beach B-Girls scheme, finding that the district court erroneously declined to instruct the jury, as the defendants requested, that the jurors must acquit if they found that the defendants had tricked the victims into coming into a bar but nevertheless gave the victims exactly what they asked for and charged them exactly what they had agreed to pay. The Court explained that a “scheme to deceive” only becomes a “scheme to defraud” in violation of the wire fraud statute if the scheme caused harm. Here, the B-girls may have deceived victims to go to bars and order drinks, by not disclosing the B-girls’ financial arrangement with the clubs, but unless the defendants schemed to lie about the quality or price of goods sold to the victims, no wire fraud occurred. The defendants’ proposed instruction to this effect was a correct statement of the law. The Court recognized that the instructions given by the district court “logically entailed” that the defendants intended to cheat the club customers out of money, but the instruction did not “substantially cover” the defense. This difference was meaningful because “the average juror is not Mr. Spock.” Turning to whether the instructional error was “harmless” error, the Court noted that the test was whether the faulty jury instruction did not contribute to the verdict, or whether the record contained evidence that could lead a jury to find that the defendants lacked the intent to defraud. Here, the defendants testified that they did not intend to defraud customers. The Court rejected the government’s reliance on “overwhelming evidence” of guilt, pointing out that the question is not whether the jury could still have convicted the defendants if the instruction had been given, but whether the jury could have acquitted them. Here the evidence “was not so overwhelming that an acquittal would have been irrational.” The Court also reversed the related money laundering counts.

Gordon: No SOS relief for 924(c) conviction based on substantive Hobbs Act robbery

In In Re: Darren Demeatrie Gordon, No. 16-13681 (July 8, 2016), the Court denied leave to file a second or success post-Johnson motion under § 2255. Gordon was convicted under 18 U.S.C. § 924(c) of using a firearm during and in relation to crime of violence: a Hobbs Act robbery. Post-Johnson, Gordon claimed that the “crime of violence” definition in the residual clause of § 924(c) was unconstitutionally vague. The Court ruled, however, that the substantive offense of Hobbs Act robbery – unlike a conspiracy to commit a Hobbs Act robbery – qualified as a “crime of violence” under the use-of-force clause, without regard to the residual clause of § 924(c). This means Gordon’s § 924(c) sentence would be valid even if Johnson makes the § 924(c) residual clause unconstitutional.

Parker: Florida burglary may not qualify, post Descamps, under ACCA

In In re: Leslie Parker, No. 16-13814-J (July 7, 2016), the Court granted leave to file a second or successive post-Johnson motion under § 2255. At Parker’s sentencing, he qualified under ACCA based in part on a 1983 Florida conviction for burglary of a dwelling. The district court did not specifically address whether it was relying on the now-invalidated residual clause. The Court recognized that in United States v. Weeks, it had determined that a Florida burglary conviction constituted an ACCA predicate based on the enumerated clause. However, Weeks predated Descamps, and it is therefore not a binding precedent that holds that Florida burglary is divisible under Descamps. Accordingly, Parker had made out a prima facie case. The Court noted that the PSI indicated that Parker had additional prior convictions that were not addressed at sentencing. But the government could now waive reliance on these other convictions, and the Court therefore did not address them.

Vazquez: State expressly waived procedural default

In Vazquez v. Sec., Fla. Dep’t of Corrections, No. 15-10321 (July 1, 2016), the Court reversed the denial of habeas relief to a Florida inmate, finding that the district court erroneously concluded that Vazquez had defaulted his Sixth Amendment Confrontation Clause claim, because the State had waived procedural default. The Court recognized that generally, a petitioner must exhaust all state court remedies, and, if he fails to do so, the result is procedural default, “which bars habeas relief.” Here, however, in the district court the State in its brief expressly waived reliance on procedural default. Further, the district court did not point to any factors that required a rejection of the State’s waiver.

Raleigh: Denying habeas relief for 1994 murders

In Raleigh v. Sec., Fla. Dep’t of Corrections, No. 14-14198 (June 30, 2016), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for 1994 murders. The Court rejected, inter alia, the argument that the State put on contradictory cases for two accomplices at two trials, one that portrayed Raleigh as a “drunken boob,” another at his own trial that portrayed him as a cold, calculating murderer. The Court found that the “drunken boob” comment was made in passing, and did not accurately characterize the state’s argument.

Trailer: Affirming sex offender's life term of supervised release

In U.S. v. Trailer, No. 15-14583 (June 30, 2016), the Court affirmed a life term of supervised release, rejecting a claim that this was substantively unreasonable to a sex offender who was ordered not to have contact with minors, yet nonetheless lied to his probation officer about the fact that he was living with his wife’s four minor children. The Court noted that the life term was within the statutory range of five years to life. The Court noted that “having molested his then girlfriend’s eight-year-old daughter, he was thereafter prohibited from having contact with children under the age of 18.” He nonetheless had contact with his wife’s minor children, all the while lying about it to his probation officer. The Court also noted that the defendant was free to petition the court for early termination or modification of his supervised release.

Williams: No SOS grant because of life sentence on other count

In In Re: Dennis Williams, No. 16-13013-J (June 24, 2016), the Court recognized that an applicant’s motion for leave to file a second or successive § 2255 motion made out a prima facie case as to one count of conviction. But, because Williams had been sentenced to a concurrent term of life on another count he could not show that he could “benefit” from § 2255 relief, and the Court consequently denied the application. Williams was sentenced for drug trafficking, and under 21 U.S.C. § 851, was subject to a life term for a repeat drug trafficking offender. This sentence was not subject to a post-Johnson challenge. He was also sentenced as a career offender, but he could not, under Eleventh Circuit precedent, challenge his career offender designation even post-Johnson. Thus, while Williams’ sentence under another count of conviction could be challenged post-Johnson, this challenge would be “futile” in view of Williams § 851 sentence, and his career offender status.

Jackson: Granting SOS for 1975 Florida aggravated assault and pre-2000 Florida robbery

In In re: Steven Jackson, No. 16-13536-J (June 24, 2016), the Court granted an application for leave to file a second or successive § 2255 motion, post-Johnson. At Jackson’s sentencing, the district court did not announce which ACCA definition it was relying on in sentencing Jackson under ACCA. The Court recognized that Turner v. Warden, 709 F.3d 1328 (11th Cir. 2013) “held that a conviction for aggravated assault under Florida Statute § 784.021 met ACCA’s elements clause definition”, but Turner did not apply because Jackson’s 1971 aggravated assault conviction predated the enactment of the 1975 statute at issue in Turner. The issue whether this 1971 conviction qualified for ACCA purposes was for the district court to decide. The Court also left for the district court to decide whether Jackson’s pre-2000 Florida robbery conviction qualified under ACCA. The Court noted that it had not reached this pre-2000 version of the statute in Lockley, and that, without the residual clause, no binding precedent makes undeniably clear that pre-2000 robbery qualifies under ACCA. The Court recognized that Jackson’s § 2255 motion, once filed in the district court, could be filed more than one year after Johnson, that is, beyond the one-year statute of limitations. The Court noted several possible equitable factors that could allow Jackson’s § 2255 motion to go forward, even if untimely, and left it for the district court to decide this issue in the first instance.

McCall: Summary denial of SOS for Guidelines applicant

In In re: Datrist McCall, No. 16-12972-J ((June 17, 2016), in a one-paragraph order, the Court denied an application for file a second or successive § 2255 motion to a defendant sentenced under the Sentencing Guidelines. [Judge Martin, concurring, noted that, unlike the Eleventh Circuit, all eleven of the other courts of appeals have either held or assumed that Johnson makes the residual clause of the career offender Guideline unconstitutionally vague. A grant of McCall’s application “would give him a shot at the relief he could have pursued had he been sentenced anywhere but in the Eleventh Circuit.” Judge Martin noted that the Eleventh Circuit had denied “hundreds” of applications by scrutinizing whether the applicant would prevail on the merits, reaching whether a defendant committed every crime listed in his presentence investigation report in the manner alleged in that report, or even deciding questions of first impression about how a state’s courts interpret the elements of its own criminal statute – without input from a lawyer. Judge Martin pointed out that other courts are not scrutinizing the merits of these cases at this stage. “If even a single one of those orders are mistaken, then a prisoner has been doomed to serve an unlawful prison sentence, without possibility of further review.” ].

Rogers: SOS Clear/Unclear test

In In Re: Joseph Rogers, Jr., No. 16-12626-J, the Court denied an application for a second or successive (SOS) § 2255 motion, ruling that “because binding precedent clearly classifies as elements clause offenses the convictions Mr. Rogers’ sentencing court relied on as ACCA predicates, his application does not make out a prima facie case under Johnson.” The Court explained that it applies a “clear/unclear” test. It denies an SOS application if it is clear that the motion will not contain a Johnson claim. This is clear when the sentencing court specifically identified three prior qualifying ACCA convictions under the elements or enumerated crimes clauses, and/or under binding precedent the prior convictions qualified as ACCA predicates under the elements or enumerated crimes clauses. If not, the Court applies Descamps, and, if it is unclear from binding precedent that the state statute is divisible under Descamps, the applicant has made out a prima facie case. “When neither the sentencing court’s finding on which ACCA clause or clauses applied nor binding on-point precedent forecloses an applicant’s assertion that his sentence arose under ACCA’s residual clause, we look to Descamps to ensure we apply the correct meaning of ACCA’s words.” And at this point, unless post-Descamps binding precedent clearly resolves the residual clause ambiguity, his application should be granted. The Court noted that deciding complex issues of first impression, such as whether a state statute was “divisible,” would be impracticable in a SOS proceeding. Citing the law-of-the-case doctrine, the Cout also noted that it had an obligation to determine whether its binding precedent “has been abrogated by intervening caselaw.” With respect to Rogers, in Turner v. Warden Coleman the Court had previously held that Florida aggravated assault, and Florida aggravated battery, qualified as a violent felony under the elements clause. Because Turner is binding precedent, Rogers did not make out a prima facie case.

Hires: Denial of SOS because aggravated assault and robbery at gun point are violent felonies, and Descamps does not apply

In In Re: Morris Vernell Hires, No. 16-12744-J (June 15, 2016), the Court denied an application for a second or successive (SOS) § 2255 motion, ruling that a “Florida conviction for aggravated assault under § 784.021 is categorically a violent felony under the ACCA’s elements clause.” The Court stated that it had held in Turner v. Warden Coleman FCI (Medium), that an aggravated assault conviction “will always include as an element the threatened use of physical force against the person of another.” The Court further held that Hires’ 1995 conviction for robbery qualified as a violent felony. The Court noted that the unobjected-to facts in Hires’ PSI state that Hires pointed a gun at a victim and took the victim’s property at gunpoint. In determining the nature of a prior conviction, a sentencing court may rely on undisputed facts in the PSI. A Florida armed robbery qualifies as a violent felony. Turning to Descamps, the Court noted that while Descamps’ 2013 divisibility holding is retroactive for a first § 2255 motion, it is not retroactive for purposes of a second or successive § 2255 motion. The Court stated that “Johnson does not serve as a portal to relitigate whether a prior robbery conviction or another conviction qualifies under the elements clause.” The Court added that having in prior cases denied SOS applications because Descamps was not a new rule of constitutional law, it would now be “arbitrary and inequitable” to permit petitioners who can now cite Johnson to pursue SOS § 2255 motions only because their enhancements are ultimately invalidated by Descamps, not Johnson at all.

Adams: Granting SoS application where record "ambiguous" whether district court relied on residual clause, and Descamps applied

In In Re: Keith Devon Adams, No. 12519-J (June 15, 2016), the Court granted authorization to file a second or successive (SOS) § 2255 motion to a defendant sentenced under ACCA. It was unclear from the record which clause of ACCA the district court employed when it concluded that Adams’ prior burglary conviction under Fla. St. § 810.02 qualified as a “violent felony.” There was “some suggestion” that the district court considered the residual clause. At the time, Florida’s burglary statute was deemed an ACCA predicate under the residual clause, rather than the elements clause, or the enumerated clause. Further, the statute did not appear to be “divisible.” Rather than setting out the critical place-of-entry element in the alternative – i.e., “a building or its curtilage” – the place-of-entry element encompassed a “building of any kind . . . together with the curtilage thereof.” Thus, under Descamps, Adams’ burglary convicted cannot serve as a predicate offense under the enumerated crimes clause as an alternative. The Court recognized that in In Re Griffin, the Court had concluded that Decamps did not itself announce a new rule of constitutional law sufficient to satisfy § 2255(h)(2). However, the petitioner in Griffin relied on Descamps “as a standalone claim,” because the district court did not rely on the residual clause. In contrast, for Adams, the ambiguity surrounding the district court’s sentencing decision required inquiry into the text of the ACCA to determine which clause, if any, applied. The Court therefore looked to guiding precedent, such as Descamps, to interpret ACCA’s words correctly. “When this Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law.” Descamps “is not an independent claim that is itself subject to AEDPA’s gatekeeping requirements.”

Pierre: Affirming convictions and sentences for $1.9 million fraudulent tax refunds

In U.S. v. Pierre, No. 14-10589 (June 14, 2016), the Court affirmed the convictions and sentences of defendants charged with fraudulently obtaining approximately $1.9 million in tax refunds from the Internal Revenue Service (IRS). The Court rejected the argument that a stop of a vehicle for having tinted glass that violated Florida’s regulations was pretextual. The Court noted that probable cause existed for a stop, and subjective motive was irrelevant and that the driver of the vehicle consented to the search. The Court also rejected a challenge to the sufficiency of the evidence. The jury had sufficient evidence to conclude that a defendant knew the defendants knew that their business was not a legitimate tax preparation business. Turning to the sentences, the district court affirmed the imposition of a “vulnerable victim” enhancement for the use of the identities of prison inmates. The Court noted that inmates “usually do not file tax returns during periods of incarceration, and they are less likely to discover that their identities have been compromised.” The Court also rejected the challenge to the district court’s refusal to grant a minor role reduction. The Court noted that one defendant played a “vital role,” and another, though not a “leader,” had sufficient “participation” in the scheme to support the ruling. The Court also rejected a challenge to a loss amount calculation of more than $1 million but less than $2.5 million. The defendants submitted 338 fraudulent returns seeking over $2 million from the IRS. The intended loss was greater than the actual loss, but the guidelines allow a district court to rely on whichever of the two is greater.

Saint Fleur: Denial of SOS to 924(c) defendant who committed armed Hobbs Act robbery

In In Re: Marckson Saint Fleur, No. 16-12299-J (June 8, 2016), the Court denied an application for leave to file a second or successive § 2255 motion (SOS) to an inmate who invoked Johnson as a basis for challenging his § 924(c) conviction. The Court noted that the indictment expressly charged that the underlying predicate offense for the § 924(c) offense was a Hobbs Act robbery that charged Saint Fleur with committing robbery “by means of actual and threatened force, violence, and fear of injury.” Thus, this offense involved the use of force. [Martin, J., concurring, noted that she was “increasingly wary” of deciding whether a SOS would fail on the merits. Judge Martin noted the lack of briefing in cases involving pro se applicants, and the many questions that arise when an ACCA designation is based “on old convictions under state law.”]

Hines: 924(c) defendant who committed armed bank robbery denied SOS application

In In re: Charles Hines, No. 16-12454 (June 8, 2016), the Court denied leave to file a second or successive § 2255 motion (SOS) to an inmate who invoked Johnson as a basis for voiding his § 924(c) conviction. The Court recognized that it had granted an SOS in In re Pinder to an applicant who also had been convicted under § 924(c). However, Hines’ case involved the actual commission a bank robbery, an offense which has the use of force as an element. Pinder involved a conspiracy to commit Hobbs Act robbery.

Pinder: Granting SOS to 924(c) inmate

In In Re: Ricardo Pinder, Jr., No. 16-12084-J (June 1,2016), the Court granted leave to file a second or successive § 2255 motion to an inmate sentenced under 18 U.S.C. § 924(c). The Court noted that § 924(c) contained very similar language to § 924(e) – the statute at issue in Johnson, and both require higher sentences once a court decides that an offense is a “crime of violence.” Both statutes required a “categorical approach,” which assessed the “hypothetical risk posed by an abstract generic version of the offense.” The Court noted that “the law is unsettled on whether the rule announced in Johnson invalidates Pinder’s sentence.” The issue “must be decided in the first instance by the District Court.” Further, Pinder’s sentence appears to have been based on a conviction for conspiracy to commit Hobbs Act robbery, and the Eleventh Circuit has not yet decided whether this offense qualifies as a “crime of violence” under ACCA.

Griffin: Denial of Second or Successive 2255 application for career offender sentenced under mandatory guidelines

In In Re: Marvin Griffin, No. 16-12012-J (May 25, 2016), the Court denied a second or successive application for post-Johnson § 2255 relief, to an inmate sentenced pre-Booker when the Federal Sentencing Guidelines were mandatory. Citing its earlier decision in Matchett, the Court held that Johnson applied to ACCA enhancements, not to the Sentencing Guidelines – whether mandatory or advisory. The Guidelines “are directives to judges for their guidance in sentence convicted criminals [and] Due Process does not mandate notice of where, within the statutory range, the guidelines will fall.” Further, unlike an ACCA error, an error in calculating a defendant’s guidelines range does not alter the statutory sentencing range set by Congress, and would not produce a sentence that exceeds the statutory maximum. A district court could still impose the same sentence as before. Turning to Griffin’s reliance on Descamps, the Court held that “to open the successive § 2255 door, the rule must be both new and a rule of constitutional law. Descamps is a rule of statutory interpretation, not constitutional law.” Accordingly, Griffin failed to present a prima facie case under § 2266(h)(2) with regard to his career offender guideline sentence.

Thomas: Denial of Second or Successive 2255 application

In In Re: Edward Thomas, No. 16-12065-J (May 25, 2016), in a published order, the Court denied an inmate’s pro se application for leave to file a Second or Successive (SoS) Motion under 28 U.S.C. § 2255(h). The Court noted that “merely alleging a basis that meets § 2255(h)’s requirements in the abstract only ‘represent[s] the minimum showing’ necessary to file a successive § 2255 motion.” The Court noted that in In re Holladay, it had granted an application because the inmate had proffered detailed evidence that showed a “reasonable likelihood” of success on the merits. Accordingly, an inmate must do more than “simply identify Johnson as the basis for an SoS claim, but also “must show that he falls within the scope of the new substantive rule announced in Johnson.” Thomas relied on Descamps v. U.S. The Court recognized that Descamps could affect the analysis of whether a prior Florida burglary conviction qualified as a violent felony under ACCA, because it held that courts may not rely on the modified categorical approach unless a statute is divisible. But Descamps “merely interpreted an existing criminal statute,” and did not announce a new rule of constitutional law that applied retroactively, as required by § 2255(h)(2). Descamps was therefore “unavailing.” Thus, the district court’s determination that Florida burglary qualified as “generic burglary” under ACCA’s enumerated clause was not affected by Johnson. In addition, Thomas’ two convictions for armed robbery continued to qualify as ACCA predicates under the elements clause.

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.