Korf: Upholding Denial of Injunction Prohibiting Use of Taint Team and Filter Protocol

In In re: Sealed Searched Warrant and Application for a Warrant by Telephone or Other Reliable Electronic Means (United States v. Korf et al.), No. 20-14223 (Aug. 30, 2021) (Martin, Rosenbaum, Luck) (per curiam), the Court upheld the denial of a motion to enjoin the use of a government filter team.

The government executed a search warrant at a suite of offices, and included in the materials seized were those from the office of an in-house attorney.  Relying on Rule 41(g), the clients intervened and sought an injunction prohibiting the government’s filter team—consisting of government attorneys and staff who were not involved in the investigation—from reviewing any potentially privileged documents without their consent or court approval.  On appeal, the Court first concluded that it had appellate jurisdiction because the intervenors sought only the return of their property, not invalidation of the seizure, and that was sufficiently independent of any forthcoming criminal judgment.  However, the Court found no abuse of discretion in denying the request for injunctive relief because the intervenors could not show a substantial likelihood that they would succeed on their claim that a government filter team per se violates their rights, or that the filter protocol in place here would violate their rights.  The filter protocol here allowed the intervenors to conduct an initial privilege review, and it required their permission or a court order before releasing any purportedly privileged documents to the investigation team.

Mitchell: It is Unconstitutional for Prison Officials to Open Legal Mail Outside Inmate's Presence

 In Mitchell v. Duvall County et al., No. 19-14505 (Aug. 26, 2021) (Branch, Grant, Tjoflat), the Court re-affirmed that it clearly violates the First Amendment for prison officials to open an inmate’s legal mail outside of his presence. 

Watkins: En Banc Court Holds Preponderance of Evidence, Not Reasonable Probability, Governs Inevitable Discovery Exception to Exclusionary Rule

In United States v. Watkins, No. 18-14336 (Aug. 20, 2021), the en banc Court—in a joint opinion by Judges Martin and Ed Carnes—granted the defendant’s rehearing petition and vacated the panel opinion without oral argument. 

The en banc Court held that the standard of proof that the government must meet in order to establish that evidence would have been inevitably discovered is the preponderance of evidence, not a “reasonable probability.”  All prior Eleventh Circuit precedents to the contrary are overruled.  The Eleventh Circuit remanded the case back to the panel for further proceedings consistent with this new holding.

Gonzalez: SR Sentences May be Reduced Under Section 404 of First Step Act

In United States v. Gonzalez, No. 19-14381 (Aug. 19, 2021) (Jordan, Newsom, Tjoflat), the Court affirmed the denial of a motion for a reduced sentence under Section 404 of the First Step Act.

Joining two other circuits, and accepting the government’s concession, the Court held that a sentence imposed upon revocation of supervised release can be reduced where the underlying offense is a “covered offense.”  However, the Court affirmed the denial of the motion because the district court’s alternative discretionary denial was supported by the record and 3553(a) factors.  The Court declined to follow a Seventh Circuit decision (and arguably Fourth and Sixth Circuit decisions) categorically requiring the district court to calculate and consider the defendant’s new guideline range before exercising discretion under Section 404(b).

Judge Tjoflat concurred because he was bound by precedent, but he believed that, because the text of Section 404 includes no standard guiding the district court’s discretion, the court of appeals cannot review discretionary denials at all.

Coats: Aiding/Abetting Georgia Burglary Is Generic Burglary Under the ACCA

In United States v. Coats, No. 18-13113 (Aug. 12, 2021) (Martin, Newsom, Julie Carnes), the Court, in a 75-page opinion, affirmed the defendant’s felon in possession conviction and affirmed his ACCA sentence.

As to the conviction, the Court found no plain error under Rehaif.  Although the district court committed error that was plain by accepting his guilty plea without advising him of the mens rea element, he could not establish prejudice, as required by the Supreme Court’s recent decision in Gary, because he made no attempt to show that he would have proceeded to trial but for the Rehaif error, and he had numerous prior felony convictions.

As to the sentence, the Court held that the defendant’s 2003 Georgia burglary conviction qualified under the ACCA’s enumerated clause.  In an extensive discussion, the Court rejected the defendant’s argument that Georgia’s “party to a crime” statute, which included aiding and abetting liability, rendered his offender non-generic.  Georgia law required an accomplice to burglary to take affirmative action and to intend to facilitate the crime, as required by the generic standard for aiding and abetting articulated by the Supreme Court in Rosemond.

Finally, the district court did not err by declining to grant acceptance of responsibility because, despite pleading guilty, the defendant obstructed justice.  The record did not clearly establish that this was an extraordinary case where a reduction was warranted notwithstanding the obstruction, especially given that the obstructive act was a violent assault of a key witness.  It was not enough that the obstruction preceded the indictment.

Akwuba: With One Exception, Upholding Pill Mill Convictions Over Various Trial Challenges

In United States v. Akwuba, No. 19-12230 (Aug. 11, 2021) (Wilson, Rosenbaum, Ed Carnes), the Court affirmed, with one exception, the defendant’s convictions for distributing controlled substances and health care fraud as part of a pill mill operation.

First, with one exception, the evidence was sufficient to support her convictions for distribution of controlled substances, conspiracy to distribute controlled substances and to commit health care fraud, and substantive health care fraud.  With regard to one count of substantive health care fraud, the government conceded, and the Court agreed, that the evidence was insufficient because an insurance company not named in the indictment was billed for the prescriptions for that count.

Second, the Court rejected the defendant’s argument that a jury instruction on a disputed factual question effectively directed a partial verdict of guilty.  The instruction did not relate to an element of the offense or any factual question that the jury was required to decide.  And although a closer question, the instruction also did not violate the right to present a defense because, while the judge erroneously told the jury that the parties had stipulated to something they did not, it did not prevent the defendant from presenting her theory of defense to the jury.

Finally, there was no reversible error on three evidentiary rulings.  First, the district court did not reversibly err by preventing the defendant from eliciting testimony that a prescription pad had been stolen, as defense counsel ultimately withdrew that line of questioning.  Second, the district court did not err by limiting a line of cross examination on the government’s expert witness because it did not pertain to the defendant, and there was nothing more to impeach the expert with.  Third, experts did not expressly state opinions regarding the defendant’s mental state, and the likely-irrelevant admission of some testimony about the experts’ personal practices did not rise to the level of plain error.

Harris: Upholding Drug/Firearm Convictions for Corrupt Cops In Face of Multiple Challenges

In United States v. Harris, No. 19-13692 (Aug. 9, 2021) (Jill Pryor, Newsom, Marcus), the Court affirmed the defendants’ drug and firearm convictions stemming from a reverse sting police corruption investigation.

First, there was sufficient evidence to support the defendants’ convictions based on the evidence at trial.

Second, while there was sufficient defense evidence of inducement to permit an entrapment defense to go to the jury, there was nonetheless sufficient evidence that the defendant was predisposed to take part in the conspiracy.  In addition, the defendant challenge the court’s response to the jury’s question about whether the definition of entrapment applied to each count or if it was a single determination.  The court responded that the jury should consider each crime and the evidence relating to each separately.  That was not an abuse of discretion because the evidence of predisposition was not the same for each count.

Third, the defendant was not entitled to a duress instruction because he did not show that he had no reasonable opportunity to escape or inform the police.

Fourth, the district court did not abuse by dismissing the indictment sua sponte based on prosecutorial misconduct because the prosecutor did not knowingly used perjured testimony or fail to correct material false testimony.  The Court found no misconduct at all.

Fifth, with regard to the defendants’ Batson challenge, they failed to make a prima facie case of discrimination.  The defendants argued only that the stricken jury was African American, and they did not believe there was any reason to disqualify him other than race.  Those arguments alone, however, were insufficient to raise an inference of racial discrimination.  The government only struck one African American out of the seven peremptory challenges, it made no objection to the other three African Americans on the panel, and the final jury included two African American jurors.  In any event, there was no error in the district court’s ultimate determination that the defendants failed to establish that the government’s race-neutral reason was pretextual.

Sixth, the prosecutor did not improperly shift the burden of proof or commit misconduct at closing.

Finally, the district court did not commit plain error by failing to sua sponte advise the jury that a read-back of trial testimony was available because there was no precedential decision so holding.  Nor did the defendant show any prejudice from the failure.

Cordero: Upholding Various Challenges to Supervised Release Term and Conditions

In United States v. Cordero, No. 18-10837 (Aug. 4, 2021) (Branch, Grant, Tjoflat), the Court affirmed the defendant’s motion to modify and terminate his supervised release.

First, the district court did not abuse its discretion by entering a sealed order requiring the defendant to disclose information related to the work he performed and by requiring him to disclose his sex offender status to potential clients.  The Court rejected his argument that the order effectively modified his supervision and imposed a new restriction without granting him an evidentiary hearing or making necessary findings.  The district court was merely enforcing a previously-imposed condition of his supervision.  To the extent the defendant sought to challenge the original condition, he failed to appeal it after it was imposed, and any such challenge was barred by a valid appeal waiver.

Second, the district court did not abuse its discretion by denying the motion to modify the conditions of supervised release to eliminate a restriction on internet access.  Although the district court did not explicitly address the 3553(a) factors, the record as a whole supported the conclusion that the district court considered them.  And those factors supported the continued existence of the restriction.  In addition, while the defendant argued that the internet restriction was now unconstitutional in light of the Supreme Court’s decision in Packingham, the Court joined three other circuits in concluding that a defendant cannot challenge the legality or constitutionality of his supervised release conditions through a motion for modification under 3582(e)(2); that argument must instead be raised on direct appeal or in a 2255 motion.  In any event, the Court noted that its recent decision in Bobal foreclosed the defendant’s constitutional challenge.

Finally, the district court did not abuse its discretion in denying the motion for early termination because the record as a whole supported the conclusion that the district court considered the 3553(a) factors.

Carter: One version of Georgia aggravated assault is not an ACCA violent felony post-Borden

In United States v. Carter, No. 17-15495 (Aug. 3, 2021) (Black, Marcus, Restani), the Court vacated the defendant’s ACCA sentence based on a prior conviction for Georgia aggravated assault with a deadly weapon.

Based on the Shepard documents, the Court was required to assume that the defendant was convicted of a version of Georgia aggravated assault that could be committed with a mens rea of recklessness—specifically, committing an act which places another in reasonable apprehension of immediately receiving a violent injury.  Because that offense could be committed recklessly, the Court had previously held in Moss that it was not a violent felony.  And the Court had reaffirmed Moss after the Supreme Court’s decision in Borden confirmed that reckless crimes do not satisfy the ACCA’s elements clause.

Williams: Affirming Convictions for Sex Trafficking and Sentence of Life Imprisonment

In United States v. Williams, No. 19-11972 (July 23, 2021) (Martin, Grant, Brasher), the Court affirmed the defendant's convictions for sex trafficking and sentence of life imprisonment.

Defendant raised three challenges to his convictions: (1) the district court improperly admitted nude images and videos of the victims; (2) there was not enough evidence to show that he had the required mens rea for his crimes against one of the victims; and (3) the district court should have instructed the jury that a victim's consent to perform a sex act is a defense to sex trafficking. 

As to the first argument, the Court only considered whether the images' probative value was substantially outweighed by the danger of unfair prejudice because the defendant conceded that the images were relevant.  The Court found the images and videos were probative and not unduly prejudicial.  Though they were graphic in nature, that was unsurprising given the nature of the alleged crimes.  Additionally, the district court properly cautioned potential jurors during voir dire that they would view evidence of a sexually explicit nature, and seated those jurors who confirmed that this would not impact their ability to be fair and impartial.  

Next, the Court found that the government presented sufficient evidence demonstrating that the defendant knew that one of the victims was a minor at the time he trafficked her.  Similarly, the government introduced sufficient evidence demonstrating that the defendant continued to coerce her to engage in a commercial sex act as an adult.  

Finally, the Court found no abuse of discretion in the district court's denial of defendant's proposed jury instruction because the 11th Circuit has never recognized consent as a valid defense to sex trafficking.  And, in any case, the court's instructions substantially covered the issue.  

The Court also affirmed defendant's sentence of 5 terms of life imprisonment and 240 months imprisonment (all to run concurrent), along with restitution.  As to the restitution amounts, the Court found them properly calculated even though they were government estimates because they were reasonable--supported by credible evidence, including trial testimony.  The Court also held that under the Trafficking Victims Protection Act, a victim is entitled to the "gross income" derived from her trafficking, so no offset for living expenses paid by the defendant was necessary.  Finally, even though one of the victims renounced any restitution award, restitution under the TVPA is mandatory, and therefore, the court must order it.  The Court acknowledged that this holding was contrary to the holding of the Tenth Circuit analyzing similar language in the MVRA.  

The Court also found defendant's life sentences substantively reasonable.        

Dudley: Sentencing Court May Consider Factual Basis for Plea When Conducting ACCA Different-Occasions Inquiry

In United States v. Dudley, No. 19-10267 (July 22, 2021) (Newsom, Branch, Ray (N.D. Ga.)), the Court affirmed the defendant's ACCA-enhanced sentence.  Judge Branch delivered the opinion of the Court, in which Judge Ray joined, and Judge Newsom joined in all but Part III.A.    

On appeal, defendant argued that he was not ACCA because there was insufficient evidence to establish that his prior Alabama felony convictions were for offenses committed on occasions different from one another.  He also argued, for the first time on appeal, that Rehaif necessitated vacatur of his guilty plea to being a felon in possession of a firearm. 

The Court noted that the different-occasions inquiry necessarily requires looking at the facts underlying the prior convictions, but that courts are limited to Shepard-approved sources, as only information found in such conclusive judicial records has gone through a validation process that comports with the Sixth Amendment.  The Court also noted that in determining whether a defendant's prior convictions were committed on different occasions from one another, a district court may rely on non-elemental facts contained in the Shepard-approved sources.  Finally, the Court rejected the argument that judicially determining whether prior convictions were committed on different occasions from one another for purposes of the ACCA violates a defendant's Fifth and Sixth Amendment rights, finding itself bound by its opinion in Almendarez-Torres.     

With the above in mind, the Court found the district court's reliance on dates proffered by the state prosecutor during the plea colloquy for the Alabama offenses proper because, although the defendant did not state expressly during the Alabama plea colloquy that he agreed with the prosecutor's factual proffer, he did not object.  The Court held that, consistent with Shepard, where there is evidence of confirmation of the factual basis for the plea by the defendant--be it express or implicit confirmation--a federal sentencing court is permitted to rely on those facts to conduct the different-occasions inquiry.    

The Court also rejected the defendant's challenge to his guilty plea as foreclosed by binding precedent.  

Judge Newsom concurred in part and dissented in part.  He dissented from Part III.A. of the Court's opinion, rejecting the defendant's challenge to the ACCA enhancement, because, in his view, a federal court may consider a plea-colloquy transcript in determining whether a defendant's prior offenses were committed on different occasions only when the factual basis for the plea was expressly confirmed by the defendant. 

 

Moss: Reinstating Panel Opinion

In United States v. Moss, 17-10473 (July 22, 2021) (en banc), the Court vacated its order granting rehearing en banc, and reinstated the panel's opinion in light of the Supreme Court's opinion in Borden v. United States, 141 S. Ct. 1817 (2021).

The reinstated panel opinion held that Georgia aggravated assault did not satisfy the elements clause of the ACCA because it could be committed recklessly.    

Carrasquillo: Finding "Daylight" Between U.S.S.G. § 2D1.1(b)(1) and § 5C1.2(a)(2)

In United States v. Carrasquillo, 19-14143 (July 14, 2021) (Jordan, Newsom, Tjoflat), the Court affirmed defendant's 60-month sentence for conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. 

Defendant first argued that the district court erred by failing to elicit objections after imposing his sentence, thereby committing Jones error.  The Court agreed that the district court erred, but concluded that remand was unnecessary because the record was sufficient to permit appellate review of the sentencing issue raised.  

Defendant next argued that the district court improperly conflated the standards under U.S.S.G. § 2D1.1(b)(1)--which provides for a two-level increase if a dangerous weapon, including a firearm, "was possessed"--and U.S.S.G. § 5C1.2(a)(2)--the "safety-valve" provision that permits a district court to impose a sentence without regard to an otherwise-applicable mandatory minimum if certain criteria are satisfied, including if the defendant did not "possess a firearm  . . . in connection with the offense"-- when it denied him safety-valve relief after finding that he was subject to a two-level enhancement for possessing a firearm.

The Court agreed that there is "daylight" between the standards under § 2D1.1(b)(1) and § 5C1.2(a)(2).  While a defendant must show that it is "clearly improbable" the gun was connected to the offense to prevent application of § 2D1.1(b)(1), he need only "tip the scale towards improbability--a lighter burden" to qualify for safety valve relief.  The Court also agreed that application of the firearm enhancement does not necessarily preclude safety-valve relief.  But, the Court nonetheless affirmed because, on the record, the district court's factual findings under § 2D1.1(b)(1) foreclosed relief under § 5C1.2(a)(2).  There is overlap between § 2D1.1(b) and § 5C1.2(a)(2), and that overlap results from the common issue of connectivity.  A § 2D1.1(b)(1) factual finding that there is a connection between the firearm and the offense, if supported by the record, means that the defendant cannot satisfy § 5C1.2(a)(2).        

Colston: Affirming Convictions for Possession with Intent to Distribute and Conspiring to Distribute

In United States v. Colston, No. 19-13518 (July 13, 2021) (Grant, Tjoflat, Ed Carnes), the Court affirmed defendant's convictions for knowingly possessing with intent to distribute 2 kg of cocaine, in violation of 21 U.S.C. § 841(a)(1), and conspiring to distribute cocaine, in violation of 21 U.S.C. § 846.  

Defendant walked into a post office, showed a tracking receipt on her phone, and walked out with a package containing roughly $200,000 worth of cocaine.  Unbeknownst to her, however, law enforcement had already flagged the package, and arrested her as soon as she picked it up.  

On appeal, defendant first argued that the evidence was insufficient to support her convictions because the government failed to prove that she specifically knew the package contained cocaine.  Though the government agreed that proof of knowledge of the specific drug was an element of the offense, the Court disagreed, and held that the government need only prove that a defendant knew she possessed a controlled substance, not knowledge of the specific substance she possessed.  The Court clarified that when the government charges violations of § 841(a)(1) and also seeks enhanced penalties under § 846, it needs to prove a defendant's mens rea only for the substantive violation, not for the specific drug charged.  In so holding, the Court clarified that its prior precedent indicating otherwise--United States v. Narog, 372 F.3d 1243 (11th Cir. 2004)--was no longer good law.   

Defendant next argued that the district court erred in giving a deliberate ignorance instruction because there was insufficient evidence to support it.  The Court held that where the evidence introduced at trial is sufficient to support another theory--here, actual knowledge--it need not decide whether the evidence was also sufficient to justify giving a deliberate ignorance instruction.  

Finally, defendant challenged the admission into evidence of her illegal sales of prescription drugs.  The Court found evidence of prior drug dealings to be probative of intent to distribute a controlled substance, as well as involvement in a conspiracy.  And, any probative value was not substantially outweighed by undue prejudice.  

Stancil: Affirming ACCA-Enhanced Sentence Based Upon Virginia Drug Priors

In United States v. Stancil, 19-12001 (July 13, 2021) (Branch, Grant, Tjoflat), the Court affirmed the defendant's ACCA-enhanced conviction and sentence for being a felon in possession of a firearm.  

Defendant was pulled over for speeding one night.  When officers approached his car, they saw him reach down several times.  They also smelled marijuana when defendant lowered his window.  They asked the defendant to step out of his vehicle and ran his driver's license, which revealed that he was a convicted felon on probation.  While one officer checked defendant's license, another searched his car and found a firearm under the driver's side floor mat.  

Defendant moved to suppress the firearm, which the district court denied.  He then proceeded to a stipulated bench trial, and was found guilty.  At sentencing, the district court determined that his three prior Virginia drug convictions were serious drug offenses under the ACCA, and sentenced him to 15 years imprisonment.  

As to the prior Virginia drug convictions, defendant argued that the least culpable conduct included "giving or possessing with intent to give a controlled substance to another" without intent to profit, and therefore was overbroad.  The Court disagreed, analogizing to similar Alabama statutes analyzed in Hollis v. United States and United States v. Robinson.   

As to defendant's motion to suppress the firearm, the Court found no clear error in the district court's decision to credit the testimonies of the police officers who testified, and found that the officers had probable cause to search defendant's car on account of the marijuana odor.  

The Court also rejected--as clearly foreclosed by binding circuit precedent--defendant's arguments that his Fifth and Sixth Amendment rights were violated when the court determined that his prior predicate offenses occurred on different occasions, and his argument that 18 U.S.C. § 922(g)(1) exceeds Congress's authority under the Commerce Clause.   

Phillips: Vacating Conviction on Double Jeopardy Grounds

In United States v. Phillips, No. 18-11737 (July 13, 2021) (Jill Pryor, Grant, Royal (MD Ga)), the Court affirmed in part and vacated in part defendant's convictions relating to child pornography.

Defendant was charged with, and convicted of: (1) knowingly and intentionally using, persuading, inducing, and enticing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, in violation of 18 U.S.C. §§ 2251(a) and (e); (2) knowingly receiving, and attempting to receive, material containing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1); and (3) knowingly possessing, and attempting to possess, material containing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2).   

On appeal, defendant first challenged the jury instruction given as to count 1.  He argued that the district court constructively amended the indictment because the indictment charged him with "knowingly and intentionally" causing a minor to engage in sexually explicit conduct, while the court's instruction to the jury noted that the government need not prove that the defendant knew the victim was a minor.  The Court found no reversible error because the statute does not require that the defendant know his victim's age; therefore, the district court did not err in disregarding any language in the indictment that suggested otherwise.  

Defendant next argued that he was improperly convicted and sentenced for both a crime and a lesser-included crime based on the same set of facts--receiving and possessing child pornography.  The Court agreed that it was a violation of the Double Jeopardy Clause for defendant to be convicted of both an offense and its lesser-included offense, and vacated defendant's conviction for count 3.  The Court did so on plain error review.         

Leonard: § 922(g) Indictment Errors Subject to Harmless Error Review

In United States v. Leonard, No. 19-14142 (July 8, 2021) (Martin, Grant, Brasher), the Court held that an indictment's failure to set out an element of the offense does not warrant an automatic presumption of prejudice to the defendant.  Any such error is subject to the harmless-error inquiry.  

Defendant was indicted for being a felon in possession of a firearm prior to the Supreme Court's issuance of Rehaif v. United States, 139 S. Ct. 2191 (2019).  Once the Supreme Court granted certiorari review in Rehaif, the government, in an abundance of caution, superseded defendant's indictment to include the knowledge element.  The defendant moved to dismiss the new indictment as legally insufficient, which the district court denied. On appeal, defendant challenged his indictment, the district court's refusal to reopen his suppression hearing, the district court's denial of his motion to hold a hearing to challenge the search warrant affidavit, whether cumulative trial errors warranted reversal, and the propriety of his sentence. 

With regard to the indictment, the Court held that an indictment that references only § 922(g) and not also § 924(a)(2) is sufficient to confer subject matter jurisdiction.  Additionally, the indictment was itself legally sufficient and gave defendant adequate notice of the elements the government needed to prove.  But, even if the indictment could have been better drafted, any error in its wording was harmless, applying the Supreme Court's recent opinion in Greer. 

With regard to the district court's refusal to reopen the suppression hearing, the Court found no abuse of discretion because the "new evidence" defendant referenced did not contradict the testimony the district court already considered at the hearing.  

With regard to challenges to the veracity of search warrant affidavit, the Court held that defendant failed to make a "substantial preliminary showing" that the search warrant author made false statements intentionally or with a reckless disregard for the truth, and that the false statement was necessary to the finding of probable cause.  

With regard to the alleged cumulative trial errors, the Court held such relief unwarranted where, as here, there is only one error or no errors at all. 

Finally, the Court affirmed defendant's ACCA-enhanced sentence.   

Matthews: Affirming Application of Sentencing Enhancement for Offense Involving Semiautomatic Firearm Capable of Accepting Large Capacity Magazine

In United States v. Matthews, No. 20-10554 (July 6, 2021) (Wilson, Rosenbaum, Ed Carnes), the Court affirmed the defendant's 57-month sentence for making false statements to a firearms dealer. 

Defendant objected to the application of enhancements for (1) an offense involving a semiautomatic firearm that is capable of accepting a large capacity magazine, and (2) having a prior conviction for a crime of violence.

The Court first acknowledged that neither it nor its sister circuits had published an opinion addressing how the sentencing enhancement under § 2K2.1(a)(3) applies when the underlying offense is making a false statement to a firearms dealer. At issue here is the commentary's definition of semiautomatic firearm that is capable of accepting a large capacity magazine as "a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm.  Here, the district court reasonably inferred that a magazine capable of accepting more than 15 rounds of ammunition--that comes standard with the rifle defendant tried to purchase--was in close proximity to the rifle defendant tried to purchase.  As such, the district court did not err in applying the enhancement. 

The Court also reaffirmed that a conviction for felony battery under Fla. Stat. § 784.041 is categorically a crime of violence.  Therefore, the district court did not err in determining that defendant's prior conviction for Florida felony battery constitutes a crime of violence.        

Pitts: Affirming § 2255 Denial for Failure to Satisfy Beeman Burden

In Pitts v. United States, No. 18-12096 (July 6, 2021) (Luck, Ed Carnes, Marcus), the Court affirmed the denial of Pitts's  Johnson-based second or successive § 2255 motion.  

Pitts was sentenced as an armed career criminal based upon the following prior convictions: (1) a 1978 California conviction for robbery with a firearm; (2) a 1982 California conviction for robbery and forcible rape; (3) a 1993 Florida conviction for delivery of cocaine; and (4) a 2001 Florida conviction for possession with intent to sell or deliver cocaine.  

On appeal, the Court addressed whether Pitts carried his burden of showing that the district court that sentenced him erred under the Johnson decision in counting his two robbery convictions as ACCA predicate violent felonies.  It found that he had not under Beeman.  A movant can meet his Beeman burden in one of two ways: first, by pointing to evidence in the record showing that the district court relied only on the residual clause in sentencing him--evidence which may include comments made by the parties, by the sentencing judge, or in the PSR; second, by showing that when he was sentenced, binding precedent clearly established that the predicate offense was a violent felony only under the ACCA's residual clause. 

Here, Pitts failed to identify anything in the sentencing transcript, PSR, or the remainder of the record indicating that the court relied on the residual clause, instead of the elements clause, in concluding that this 1978 California robbery conviction was a violent felony.  Additionally, the Court found Pitts's reference to multiple California cases unconvincing.  Pitts's reliance on United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015), is unavailing because it was decided six years after he was sentenced.  Pitts's reliance on United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), was also unavailing, even though it was issued before Pitts was sentenced, because it does not establish that robbery under California law is not a violent felony for purposes of the ACCA.  There, the 9th Circuit held that a conviction under California's robbery statute would necessarily constitute either generic robbery or generic extortion.  Thus, even if the district court might have concluded that the 1978 robbery was a violent felony under the residual clause, it could have been persuaded to find that the robbery was tantamount to extortion and therefore qualified under the enumerated offenses clause of 18 U.S.C. § 924(e)(2)(B).  

At best then, it is unclear from the record whether the sentencing court relied on the residual clause or the elements clause or the enumerated offenses cause, or all three.  As such, Pitts has failed to meet his burden and loses.         

In re Grand Jury Subpoena: Upholding Order Compelling Attorney Grand Jury Testimony Based on Crime-Fraud Exception to Attorney-Client Privilege

In In re Grand Jury Subpoena, No. 21-11596 (June 25, 2021) (Jordan, Newsom, Lagoa), the Court upheld an order granting the government’s motion to compel an attorney’s testimony to a grand jury.

The attorney was the lawyer in charge of the campaign of a political candidate who was under criminal investigation.  While the attorney claimed that his testimony was protected by the attorney-client privilege, the Court agreed with the district court that the communications fell into the crime-fraud exception to the privilege.  First, the Court held that the government made a prima facie showing of federal wire fraud by the candidate stemming from the diversion of, and failure to report, funds solicited by and donated to the campaign.  Second, the Court held that the attorney’s communications with the campaign were sufficiently related to the wire-fraud scheme.  Although courts have articulated different standards of relatedness, the more restrictive standard—requiring the communications to have furthered the criminal purpose—was met here because the lawyer was aware of the personal expenditures and then revised and reviewed the misleading disclosure forms.