Telcy: Sentence Reduction Under Section 404 of First Step Act Is not a "New Judgment" for Second-or-Successive Purposes

 

In Telcy v. United States, No. 19-13029 (Dec. 10, 2021) (Wilson, Lagoa, Brasher), the Court affirmed the dismissal of a 2255 motion as an unauthorized second or successive motion.

The issue on appeal was whether a sentence reduction under Section 404 of the First Step Act qualifies as a “new judgment” for purposes of the bar on second or successive habeas 2255 motions, and thus resets the clock.  The Court held that it does not.  The Court emphasized that Section 404 did not authorize courts to conduct a plenary, de novo resentencing or impose a new judgment.  Rather, as a matter of legislative grace, Section 404 only authorizes a sentence reduction for certain covered offenses, and it does not require the court to consider the 3553(a) factors or hold a hearing with the defendant.  For those reasons, and applying the Court’s precedents, it held that a sentence reduction under Section 404 did not give rise to a “new judgment” for purposes of the bar on second or successive 2255 motions.

Litzky: Exclusion of Expert Testimony Did Not Violate Constitutional Right to Present a Defense

In United States v. Litzky, No. 20-10709 (Nov. 23, 2021) (Jordan, Newsom, Ed Carnes), the Court affirmed defendant's convictions for possessing child pornography, producing it, and conspiring to do the same.  

Defendant raised two issues on appeal: (1) the district court violated her constitutional right to present a defense by excluding expert testimony related to her intellectual disability; and (2) her below-Guidelines sentence was substantively unreasonable. 

The district court found that the expert's proffered testimony failed to focus on the defendant's specific state of mind at the time of the charged offenses.  Therefore, because it failed to show how the defendant was unable to form the required mens rea, it would only serve to confuse the jury.  The Court agreed, finding that defendant's proffered expert testimony was not keyed to any legally acceptable defense theory.   The Court found that the defendant had failed to demonstrate a compelling reason for making an exception to the expert witness rule in FRE 702.  It reasoned that the defendant's proffered expert testimony was more akin to justification and excuse rather than a legally acceptable theory of lack of mens rea.  The Court also found that defendant failed to show that her proffered expert testimony bore persuasive assurances of trustworthiness as required by Rule 702.  "As the Supreme Court [has] explained, the Constitution leaves to the judges who must make these admissibility decisions wide latitude to exclude evidence that poses an undue risk of confusion of the issues.”        

The Court also affirmed defendant's 30-year sentence, which was 600 months below the Guidelines' recommendation.  The district court explained, in a 17-page order, why it believed a downward variance of 50 years--but no more--met the goals of sentencing.  The Court found the district court's determination well within the bounds of its discretion.  

Grady: Affirming Convictions and Sentences Over RFRA Objections

In United States v. Grady, No. 20-14341 (Nov. 22, 2021) (Branch, Grant, Ed Carnes), the Court affirmed defendants' convictions and sentences for conspiracy, destruction of property on a naval installation, depredation of government property, and trespass.  

Defendants, members of the Plowshares Movement--equipped with spray paint, bolt cutters, hammers, blood, banners, crime scene tape, Go-Pro cameras, and others tools--illegally entered the Kings Bay naval base, intending to engage in symbolic disarmament as part of their faith.  They spray-painted numerous anti-nuclear and religious messages at various locations inside the base, poured bottles of human blood at various locations, taped an "indictment" outlining their complaints to a door of one of the buildings, defaced various monuments within the base, and entered restricted areas to hang banners protesting the morality of nuclear weapons and pray.  They were arrested and indicted on charges of: conspiracy; destruction of property on a naval installation; depredation of government property; and trespass.

All defendants moved to dismiss the indictment, arguing that their prosecution violated the Religious Freedom and Restoration Act ("RFRA").  Specifically, they asserted that their actions at the Kings Bay naval base were “in accordance with their deeply held religious beliefs that nuclear weapons are immoral and illegal,” and the government’s prosecution of them substantially burdened their religious exercise in violation of RFRA. They maintained that, under RFRA, the government could not show that the decision to charge the defendants was the least-restrictive means of furthering its compelling interests in the safety and security of the base.  The district court denied their motion.   

On appeal, this Court affirmed the district court.  The Court first noted that the only prong of the RFRA analysis in dispute was the fourth prong: whether the government met its burden of demonstrating that criminal prosecution of the defendants was the least-restrictive means of furthering its significant compelling interests in the safety and security of the naval base, naval base personnel, and naval base assets.  In order to be a viable least-restrictive means for purposes of RFRA, the proposed alternative needs to accommodate both the religious exercise practiced in this case—unauthorized entry onto the naval base and destructive actions, including spray painting monuments, doors, and sidewalks, pouring human blood on doors and other areas, hammering on a static missile display, hanging banners and crime scene tape, as well as removing and partially destroying signage and monuments around the naval base—and simultaneously achieve the government’s compelling interests in the safety and security of the naval base, naval base assets, personnel, and critical operations.  The Court found that the defendants failed to proffer a least-restrictive means that would simultaneously accommodate their religious exercise while protecting the government’s compelling interests, as was their burden to proffer.

The Court further held that the district court did not err in holding the defendants jointly and severally liable for the full amount of restitution.  Because the losses in question resulted from acts which were part of the conspiracy, the district court had the authority to hold all defendants jointly and severally liable for the full amount of restitution.    

The Court also held that the district court did not err in denying a reduction for acceptance of responsibility to the defendants.  The defendants argued that they went to trial only because of their RFRA defense, and maintained that they never denied engaging in the conduct in question.  But the Court held that the district court did not clearly err in finding that neither defendant had clearly demonstrated acceptance of responsibility because they continued to deny the illegality of their actions and put the government to its burden of proof.  Additionally, because the district court made a Keene finding, any error in denying acceptance of responsibility would have been harmless.       

The Court also held that the district court did not err when it used the total damages amount to enhance one defendant's base offense level under U.S.S.G. § 2B1.1(b)(1)(C).  The Court found that the evidence at trial supported the enhancement.    

The Court also held that the district court did not err in failing to address one defendant's RFRA-related sentencing argument in the context of 18 U.S.C. § 3553(a).  

Finally, the Court held that the district court did not abuse its discretion in failing to give one defendant's requested mistake-of-fact jury instruction.  The government had to prove that the defendants acted consciously and deliberately, not that they knew or believed their actions were illegal.  Therefore, because mistake of fact is not a valid defense, the district court did not abuse its discretion in declining to give the requested instruction.    

Ramirez: Vacating Terrorism-Enhancement Sentence and Remanding

In United States v. Ramirez, No.  20-10564 (Nov. 1, 2021) (Wilson, Rosenbaum, Hull), the Court vacated the defendant's sentence and remanded.  

Defendant purchased firearms and firearm parts and components, often through straw purchasers, and sold them throughout Colombia.  Six firearms found themselves into the hands of members of the National Liberation Army ("ELN"), which the U.S. State Department has designated a foreign terrorist organization.  Defendant pleaded guilty to knowingly providing material support to the ELN, in violation of 18 U.S.C. §§ 2339B(a)(1) and 2.  

At sentencing, defendant challenged the application of the terrorism enhancement under U.S.S.G. § 3A1.4.  He argued that § 3A1.4 required that the government prove not only his material support to the ELN, but also that his offense conduct was "calculated" to influence, affect, or retaliate against the Colombian government.  Defendant claimed that his motive was to profit financially, not to retaliate against the Colombian government.  The district court overruled defendant's objections, suggesting that the court believed that the mere fact that defendant pleaded guilty to knowingly providing material support to a known terrorist organization per se satisfied § 3A1.4's "calculated" or specific intent requirement.  

On appeal, the Court vacated the application of the § 3A1.4 enhancement.  The structure of § 3A1.4 establishes two separate bases for applying the enhancement: (1) when the defendant's offense "involved" a federal terrorism crime; or alternatively, (2) when his offense was "intended to promote" a federal terrorism crime.  The Court focused on the first prong--namely on the meanings of "involved" and "federal crime of terrorism"--and whether defendant's offense or relevant conduct was "calculated" to influence, affect, or retaliate against government conduct.  The Court, agreeing with its sister circuits, found that "calculated" imposes an intent requirement.  That is, the government must show that the defendant's offense was planned to influence, affect, or retaliate against government conduct, even if that was not the defendant's personal motive.  

Here, the district court made no factual findings as to the § 3A1.4 enhancement, and erred in assuming that an offense under §2339B(a)(1) necessarily includes the additional requirement found in § 2332b(g)(5)(A) that the defendant's offense be "calculated" to influence, affect, or retaliate against government conduct.  Whether a defendant's offense is "calculated" to influence, affect, or retaliate against government conduct is a highly fact-specific inquiry that requires an examination of the record as a whole.  Because no such fact finding was conducted here, the district court erred in applying § 3A1.4's terrorism enhancement.  As such, the Court vacated defendant's sentence and remanded for resentencing and fact findings.                  

Wheeler: Affirming and Reinstating Fraud Convictions Over Numerous Challenges

In United States v. Wheeler, No. 17-15003 (Oct. 21, 2021) (Wilson, Lagoa, Brasher) (per curiam), the Court reversed a judgment of acquittal for two defendants and affirmed the convictions and sentences for three defendants involved in a telemarketing scheme that tricked investors into making stock purchases.

First, notwithstanding the district court’s judgment of acquittal, the Court found that the evidence was sufficient to support the substantive mail and wire fraud convictions.  Although not overwhelming, and some misrepresentations to the investors did not affect the nature of the bargain under Takhalov, the evidence was sufficient for a jury to find that the defendants intended to defraud the investors.  The evidence was also sufficient as to conspiracy because, even if they did not know the extent of the fraud, the evidence was sufficient that the defendants knew the objective of the conspiracy and decided to join it.

Second, the Court found that the evidence was sufficient to support the convictions for the other three defendants.  The evidence was sufficient that one defendant aided and abetting a transaction, even if he did not personally participate in it, by discouraging the victim from going to the authorities.  As to another count, the evidence was sufficient that the victim relied on the defendant’s statements.  As to another defendant, the evidence was sufficient that the defendant participated in the scheme even though he did not participate in the transactions or have any contact with the victims.  And the evidence was sufficient that his misrepresentations went to the nature of the bargain and were false.

Third, although the prosecutor said in closing that an aspect of the court’s theory of defense instruction was “not the law,” the Court held that this remark, when considered in context, was not improper.  Based on the court’s statements during the charge conference, which distinguished between the offense elements and the theory of defense, the prosecutor could have reasonably believed that his comments were proper.

Fourth, the Court found no abuse of discretion in admitting certain evidence at trial.  A government informant did not give an improper lay opinion by testifying about jargon used in recorded conversations and how “boiler rooms” typically functioned based on his own experience.  Victim testimony about the amount of their losses and its impact on them was properly admitted because it illustrated that the defendants learned about their victims’ personal lives and then exploited them, and the court instructed the jury not to be influenced by sympathy or prejudice.  Although a close question, the court did not abuse its discretion by allowing the government to impeach a defense witness on a collateral matter in order to label a defendant a drug dealer, since the line of questioning was relevant to establish that the witness might be biased.  Finally, the district court did not abuse its discretion by instructing the jury on overlapping conspiracies because the instruction merely said that the participants overlapped and did not permit the jury to lump the two conspiracies together.

As to sentencing, the district court did not clearly err by applying the sophisticated-means or managerially-role enhancements.  And, as to loss, the Court held that a defendant is liable for the total amount of loss of the conspiracy when she furthers its overall objective, and there was evidence that the defendant did so.

Judge Wilson, joined by Judge Lagoa, concurred to express concern with the prosecution’s conduct at closing and throughout the trial.  Although it did not rise to the level of misconduct, he opined that it fell short of the high level of professionalism he expected prosecutors to embody.  The district court was required to spend much effort “corralling the prosecution’s often wayward tactics,” and “the prosecution frequently appeared to ignore the court’s rulings when it disagreed with them.”

Giron: a District Court Need Not Consider 3553(a) Where It Finds No "Extraordinary and Compelling" Reasons for Compassionate Release

In United States v. Giron, No. 20-14018 (Newsom, Lagoa, Anderson) (Oct. 13, 2021), the Court--without oral argument or defense counsel--affirmed the denial of a pro se motion for compassionate release.

First, the Court held that the district court did not err by relying on the policy statement in USSG 1B1.13.  The Court held in Bryant that the policy statement binds district courts in their determination as to whether “extraordinary and compelling” reasons exist.  The defendant’s medical conditions, including high cholesterol, high blood pressure, and coronary artery disease, were manageable in prison notwithstanding the pandemic, and so he did not satisfy the criteria in Application Note 1(A).  And the defendant could not invoke the catchall provision in Application Note 1(D) because, under Bryant, only the BOP Director could invoke that provision.

Second, and relying on its recent decision in Tinker, the Court held that it is not an abuse of discretion for a court to deny relief based solely on a lack of “extraordinary and compelling” reasons, without considering danger to the public or the 3553(a) factors.  Before granting relief, a court must find that all three criteria are satisfied, so it may deny relief based on a lack of extraordinary and compelling reasons alone, without considering the 3553(a) factors.

Perry: Affirming Drug Distribution Convictions and Sentences Based in Large Part Upon DEA Task Officer Expert Testimony

In United States v. Perry, No. 16-11358 (Sept. 29, 2021) (Grant, Marcus, Axon (N.D. Ala.)), the Court affirmed the defendants' convictions and sentences.  

Defendants were indicted on numerous charges related to their involvement in a multi-year, multi-state drug distribution organization--namely, conspiracy to possess with intent to distribute in excess of 5kg of cocaine and in excess of 280g of cocaine base.  They proceeded to trial and were found guilty.  Defendant Perry was sentenced to 240 months in prison while Defendant Ragin was sentenced to 180 months in prison. 

On appeal, Defendant Perry argued that the district court erroneously admitted the testimony of DEA task force officer Lee because Lee was not properly qualified as an expert, and because his opinion testimony improperly blurred the line between expert and lay witness testimony and drew impermissible inferences for the jury.  Lee was qualified as an expert "in coded drug language and methods of trafficking, as well as the manufacture of crack cocaine from powder cocaine," and testified extensively as to the meaning of certain words and phrases used in numerous intercepted phone calls that were introduced at trial.  

The Court first found that Lee was properly qualified as an expert in interpreting code words for drugs--he had over 19 years of experience in law enforcement and formed his opinions using reliable methods and based on experience, general knowledge, and familiarity with the intercepted communications and their context.  As to Perry's second objection to Lee's testimony--that it invaded the province of the jury--the Court, reviewing for plain error, found that while portions of Lee's testimony were improper--where he crossed the line from interpreting drug language to opining about plain language, speculating, summarizing the evidence, or telling the jury what inferences to draw from the conversation--Perry failed to establish any plain error that affected his substantial rights.  The Court did note, however, that the trial court and prosecutor "should have taken greater care to cabin the case agent's expert testimony to his areas of expertise and to make clear to the jury in what capacity he was testifying."  But, the Court also cautioned that "it remains the duty of litigators to object contemporaneously when offending testimony is offered so that the trial court will have the opportunity to exercise its critical gatekeeping function when it matters most."    

Defendant Perry next objected to the admission of a recording of a cell phone call, which included out-of-court statements made by third parties who were not called to testify at trial.  The Court found no abuse of discretion in the admission of this call.  

Defendant Perry also objected to 50 additional conversations for the first time on appeal, arguing that it was not necessary for defense counsel to make the same objection over and over again during trial because the trial court had already made its ruling about one of the calls.  The Court disagreed, noting that a defendant is required to raise specific objections to specific questions and specific answers as they were offered.       

Defendant Perry also objected to the government's introduction of Rule 404(b) evidence involving events that fell outside of the charged conspiracy--specifically, the factual basis surrounding Perry's earlier federal conviction for the distribution of crack cocaine.  The district court allowed the evidence, but to limit its prejudicial impact, directed the parties to omit any reference to Perry having been convicted or having entered a guilty plea.  The Court found no error in the admission of this evidence because, by pleading not guilty, Perry made intent a material issue. 

Defendant Ragin argued that the district court should not have considered the drugs and firearms found in his residence when officers arrested him as "relevant conduct" during sentencing because his arrest fell outside the timeline of the conspiracy, and because the details of his arrest were admitted only as 404(b) evidence at trial.  The district court used the drugs and firearms found during Ragin's arrest to calculate his total offense level.  The Court found no error in the district court's consideration of the drugs and firearms found in Ragin's residence because the district court found that the drugs and firearms were part of a single course of conduct and were not an isolated, unrelated event.      

Defendant Ragin also argued that the district court erred by not sua sponte granting him a two-level minor-role reduction.  Reviewing for plain error, the Court found no error because it is insufficient to point to the broader criminal scheme when the district court determines a sentence by zeroing in on a defendant's actual conduct alone.  

Of note, the Court only considered the sentencing issues raised in Ragin's brief, finding his adoption of the arguments raised in his co-defendants' brief to be inadequate--it did not comply with the requirements of 11th Cir. R. 28-1(f).  

Somers: Certifying Questions on Florida's Assault Statutes to the Florida Supreme Court

In Somers v. United States, No. 19-11484 (Sept. 28, 2021) (Jill Pryor, Anderson, and Marcus), the Court granted the petition for rehearing, vacated its previous opinion and judgment, substituted this opinion in its place, and certified to the Florida Supreme Court the following two questions about the nature of Florida's assault statutes:

1. Does the first element of assault as defined in Fla. Stat. § 784.011(1) -- "an intentional, unlawful threat by  word or act to do violence to the person of another" -- require specific intent?

2. If not, what is the mens rea required to prove that element of the statute?

The Court reconsidered its opinion after the Supreme Court's decision in Borden v. United States, 141 S. Ct. 1817 (2021).  In supplemental briefing, movant argued that Borden abrogated Turner v. Warden Coleman FCI, 709 F.3d 1328 (11th Cir. 2021)--wherein the Court held that a Florida conviction for aggravated assault categorically qualified as a violent felony under the ACCA's elements clause--because Florida aggravated assault is not a specific-intent crime.  In response, the government argued that the specific intent to threaten another is an element of Florida aggravated assault.  Because the Florida Supreme Court has not answered the question of whether Florida aggravated assault requires specific intent, or something just like it, and Florida's lower courts are split on the mens rea required by the Florida assault statutes, the Court certified the above questions to Florida's Supreme Court for its consideration.    

Tinker: No Particular Order of Analysis Required for 3582(c)(1)(A) Motions

In United States v. Tinker, No. 20-14474 (Sept. 28, 2021) (Wilson, Newsom, Branch) (per curiam), the Court held that a district court does not procedurally err when it denies a request for compassionate release based on the 18 U.S.C. 3553(a) sentencing factors (or U.S.S.G. 1B1.13's policy statement) without first explicitly determining whether the defendant could present "extraordinary and compelling reasons."  

The Court noted that nothing on the face of 18 U.S.C. 3582(c)(1)(A) requires a court to conduct the compassionate-release analysis in any particular order.  Therefore, nothing requires a court to first find "extraordinary and compelling reasons" for release before considering the 18 U.S.C. 3553(a) factors or U.S.S.G. 1B1.13's policy statement.  Under 3582(c)(1)(A), the court must find that all necessary conditions are satisfied before it grants a reduction--i.e., support in the 3553(a) factors, extraordinary and compelling reasons, and adherence to 1B1.13's policy statement.  The absence of even one would foreclose a sentence reduction.  Therefore, a district court does not err where, as occurred  in this case, it assumes that "extraordinary and compelling reasons" exist in the 3582(c)(1)(A) context.         

The Court further found no error in the district court's analysis of the 3553(a) factors.  

Watkins: Reversing Order Granting Suppression and Remanding With Instructions

In United States v. Watkins, No. 18-14336 (Sept. 16, 2021) (Luck, Ed Carnes, Marcus), on remand from the en banc Court, the Court reversed and remanded to the district court for further proceedings.  

The Court originally reversed the district court's order granting the defendant's motion to suppress on the government's interlocutory appeal.  Though the government conceded that it violated the Fourth Amendment when GPS tracking devices placed inside an intercepted package re-activated inside the defendant's home, the Court held that there was a "reasonable probability" that the evidence would have inevitably been discovered because the agents would have conducted the same knock and talk with the same result.

The case was then reconsidered en banc.  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 the evidence, not a "reasonable probability."  The en banc Court remanded the case back to the original panel for further proceedings consistent with its holding.  

On remand, the Court, applying the preponderance of the evidence standard--whether the evidence more likely than not would have been discovered--concluded that it would have been.  In so holding, the Court found that the district court clearly erred when it disregarded the magistrate judge's credibility findings without holding a new hearing.  

The Court reversed the district court's order granting suppression and remanded the case to give the district court an opportunity to decide whether to conduct a de novo evidentiary hearing or to accept the fact findings of the magistrate judge.  The Court noted that, if accepted, those finding compel the end finding that it is more likely than not that the challenged evidence ultimately would have been discovered, without the constitutional violation, through lawful means.          

Braddy: Upholding Denial of Suppression Motion Based on an Alabama Traffic Stop and Dog Sniff

In United States v. Braddy, No. 19-12823 (Aug. 31, 2021) (Rosenbaum, Lagoa, Ed Carnes), the Court affirmed the denial a motion to suppress.

First, the Court held that the officer had reasonable suspicion make the traffic stop after observing bicycles obstructing the car’s Florida license plate.  The defendant argued that Alabama traffic law did not apply to him as a non-resident Florida driver.  The Court held that, regardless of whether the defendant’s interpretation of Alabama law was correct, the officer’s interpretation by the officer was objectively reasonable.

Second, the Court held that the officer did not unlawfully prolong the traffic stop.  The officer’s questions about the driver’s travels plans and itinerary, as well as the address on his license and ownership of the vehicle, were ordinary inquiries related to the purpose of the stop.  A dog sniff of the car also did not unlawfully prolong the stop because the sniff was conducted while the officer was still waiting for a warrant check to come back before issuing a warning.

Third, the drug-sniffing dogs were sufficiently reliable to provide probable cause to search the car.  The district court did not clearly err by crediting the officers’ testimony about the dogs’ training and certification over the defense expert’s contrary testimony.  The officers testified that the dogs’ positive alert, although “very quick” and not “final,” was consistent with their training, and the district court credited that testimony.

Judge Rosenbaum concurred in part and dissented in part.  In her view, the officers’ observations were too subjective and were closer to a hunch, since the dog behavior was so quick and subtle (and not confirmed by her review of the video) that it could have easily been normal dog behavior.  She would not defer to the officers’ subjective interpretations of dog behavior, which would effectively insulate their conduct from Fourth Amendment scrutiny.

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.