Gonzalez: Fourth Amendment Does Not Require A Misdemeanor To Occur In An Officer's Presence To Justify A Warrantless Misdemeanor Arrest

In United States v. Gonzalez, No. 23-10578 (July 19, 2024) (Wilson, Luck, Lagoa), the Court affirmed Mr. Gonzalez’s conviction, in accordance with his guilty plea, for possessing stolen mail in violation of 18 U.S.C. § 1708.

Mr. Gonzalez, based on a 911 complainant’s report and Miami-Dade police officers’ subsequent observations, was arrested for loitering and prowling—a misdemeanor under Florida law. The officers searched Mr. Gonzalez’s backpack incident to the arrest and found sealed mail that Mr. Gonzalez had removed from neighborhood mailboxes.

On appeal, Mr. Gonzalez argued that the officers lacked probable cause for the arrest because the Fourth Amendment does not permit a warrantless misdemeanor arrest for a misdemeanor committed outside an officer’s presence. The Court disagreed. It instead held that while an officer’s presence for a warrantless misdemeanor arrest would be consistent with the Fourth Amendment, it is not necessarily a constitutional prerequisite. This is so for three reasons. First, the Supreme Court has held that the Fourth Amendment need only guarantee at least as much protection against unreasonable searches and seizures as the common law had provided when the Amendment was adopted. The common law, however, had no "per se rule" that a misdemeanor arrest was unjustifiable unless the misdemeanor occurred in an officer’s presence. Second, rejection of that rule accords with the need for administrability of the Fourth Amendment. And third, the probable cause doctrine provides an acceptable avenue for challenging an arrest’s constitutionality.

Judge Luck concurred in judgment. Mr. Gonzalez's position, in his opinion, failed because common law had no "clear-cut rule" that an officer could not arrest a person for a misdemeanor committed outside the officer's presence. And besides, Mr. Gonzalez had partially committed his loitering-and-prowling misdemeanor in Miami-Dade police officers' presence. So any such rule, had it existed, would not have applied to his case.

Steiger: No Plain Error Concerning The Reasonableness Of A Twenty-Year Prison Sentence, Which District Court Imposed Following The Revocation of Appellant's Probation Sentence Based On His New Conviction Of Second-Degree Murder

In United States v. Steiger, No. 22-10742 (July 16, 2024) (CJ Pryor, J. Pryor, Coogler of N.D. Ala.), the Court (on remand from the en banc Court) affirmed Mr. Steiger’s twenty-year-prison sentence, which the district court imposed upon revoking Mr. Steiger’s original sentence of probation for four wire-fraud-related convictions.

The revocation stemmed from Mr. Steiger's intervening state-court conviction of second-degree murder.

The Court held that Mr. Steiger failed to demonstrate plain error with respect to the prison sentence’s procedural reasonableness. This is because the district court stated that it had considered the following: (1) every 18 U.S.C. § 3553(a) factor; (2) the applicable guidelines and policy statements from the Sentencing Commission; (3) court decisions; (4) the issues presented in the underlying case; (5) evidence presented at the revocation hearing, part of which concerned the nature and circumstances of the offense, as set forth in § 3553(a)(1); and (6) statements Mr. Steiger made in his defense. Additionally, the record indicated that the district court was aware of argument that the guidelines sentence was inadequate because of the seriousness of Mr. Steiger’s probation violation. Although the district court never explain why it had rejected Mr. Steiger’s request for a time-served sentence, the Court deemed it sufficient that the district court had relied on the record while making clear that it considered the parties’ arguments and the § 3553(a) factors.

The Court likewise held that Mr. Steiger failed to demonstrate plain error with respect to the prison sentence’s substantive reasonableness. Again, the district court had addressed the § 3553(a) factors, including having specifically mentioned that it considered evidence concerning the nature and circumstances of the second-degree murder. Also, the district court ordered that the sentences for each wire-fraud-related conviction run concurrently, rather than consecutively to each other.

Buselli: The Federal Murder-For-Hire Statute Is Intended to Describe the Generic Conduct Prohibited And Thus, Does Not Require Jury Instructions On Defenses to Murder Under State Law

In United States v. Buselli, No. 23-10272 (July 11, 2024) (Jordan, Lagoa, Hull), the Court affirmed Ms. Buselli’s convictions for murder for hire and making false statements to a federal agent, in violation of 18 U.S.C. §§ 1958(a) and 1001(a), respectively.

The murder-for-hire plot was intended for Ms. Buselli’s ex-boyfriend or some other third party to murder Ms. Buselli’s estranged husband. The related jury instruction provided that “[m]urder is the unlawful, premeditated killing of a human being with malice aforethought and is a violation of the laws of the State of Florida.” The Court rejected Ms. Buselli’s claim that this instruction needed to include language concerning Florida’s defenses of justifiable and excusable homicide and justifiable use of deadly force because such defenses could have resulted in a lawful killing. In any event, the Court added, the district court’s failing to provide defense instructions was harmless. Florida law on the defenses required evidence that Ms. Buselli sought either third party to kill the husband by accident or misfortune, or in an effort to defend Ms. Buselli herself from an attempted murder or from a forcible felony by the husband. But the record contained no such evidence. Additionally, evidence of the steps Ms. Buselli took to arrange for the husband’s killing belied argument that she intended to prevent an imminent forcible felony, as Florida law also required.

As to the false-statement conviction, Ms. Buselli made two statements to investigators: “I would never ask anyone to do something like this,” and “I don’t want something to happen to him.” The Court doubted that these statements—which were made after Ms. Buselli had been Mirandized and told that lying to a federal agent was a crime—were akin to pleading not guilty or demanding a jury trial under the Sixth Amendment. And given the lack of cited statutory text or binding precedent directly resolving such doubt, the Court held that Ms. Buselli’s false-statement conviction did not constitute plain error. Nor did the district court plainly err in instructing the jury on the false-statement statute’s mens rea elements.

Hernandez: A Pre-First Step Act Sentence That is Vacated Does Not Trigger § 403(a)’s Modified Stacking Rule

In United States v. Hernandez, No. 22-13311 (July 8, 2024) (Rosenbaum, Newsom, Luck), the Court affirmed Mr. Hernandez’s sentence for several 18 U.S.C. § 924(c) convictions, among other offenses on the same indictment.

Although Mr. Hernandez’s original sentence was pronounced before the First Step Act’s passage, it was judicially vacated after such passage. He therefore argued—and the government conceded—that the modified stacking rule under § 403(a) of the Act applied to his case. 

A majority of the panel disagreed. Mr. Hernandez’s argument, it reasoned, depends on whether the vacated sentence qualifies as “a sentence” that “has been imposed as of [the] date of [the Act’s] enactment,” within the meaning of § 403(b) of the Act. It does, the majority held. This is so because the vacated sentence satisfies the dictionary definition of “sentence.” Meanwhile, Congress’s use of the indefinite “a” indicates that § 403(b) covers any type of “sentence”—even one that was subsequently vacated. Further, the phrase “has not been” refers to a completed act, and Eleventh Circuit precedent establishes that the verb “imposed,” as used in the criminal sentencing context, refers to the historical fact of pronouncement. So because the district court had pronounced a sentence for Mr. Hernandez before the Act’s enactment, and because “a sentence” was therefore “imposed as of [the] date of such enactment,” the majority held that § 403(a)’s modified stacking rule did not apply to Mr. Hernandez’s case.

Dissenting, Judge Rosenbaum determined that § 403(a)’s modified stacking rule applies to all sentencings that follow the Act's enactment.

Wright: Child Pornography Production Does Not Require The Minor's Active Engagement

In United States v. Wright, No. 22-12338 (Mar. 19, 2024) (Branch, Grant, Carnes), the Court affirmed Mr. Wright’s conviction, pursuant to a plea agreement, for producing child pornography in violation of 18 U.S.C. § 2251(a) and (e). 

Mr. Wright argued that § 2251(a) required proof that the minor in question had volitionally participated in the sexually explicit conduct, but that she could not have done so because she was asleep. And so, the district court violated Rules 11(b)(1)(G) and (b)(3) in accepting Mr. Wright’s guilty plea because the court neither discussed this volition requirement when instructing Mr. Wright on the charge’s nature, nor required the government to make a factual showing of volition. The Court disagreed. Section 2251, it held, did not require the minor to have been actively engaged in sexually explicit conduct. It sufficed that the minor served as the object of Mr. Wright’s sexual desire as he engaged in the conduct.

Gbenedio: Affirming Evidentiary Rulings Underlying "Pill Mill" Convictions

In United States v. Gbenedio, No. 22-12044 (Mar. 6, 2024) (CJ Pryor, Rosenbaum, Abudu), the Court affirmed Mr. Gbenedio’s convictions and sentence for unlawful drug dispensing. The charges were based on allegations that Mr. Gbenedio, a licensed pharmacists, had operated his business as a “pill mill.” The Court addressed six issues:

First, the district court did not abuse its discretion in denying Mr. Gbenedio’s motion to dismiss. Mr. Gbenedio conceded that the indictment alleged facts about him and his pharmacy, the Controlled Substances Act, and all of the fake prescriptions that Mr. Gbenedio allegedly filled. The prosecution had no obligation to explain its legal theory as to why the prescriptions were invalid, or to provide a detailed disclosure of its evidence before the trial. And in any event, Mr. Gbenedio had learned the prosecution’s theory, including the details in a bill of particulars, as recent as one year before trial.

Second, the district court did not abuse its discretion in admitting a DEA agent’s testimony about convictions of employees from a pain clinic that was associated with Mr. Gbenedio’s pharmacy, including testimony that law enforcement learned of the pharmacy while investigating the clinic. The Court rejected argument that the testimony was offered as substantive evidence of Mr. Gbenedio’s guilt. Instead, it determined, the testimony was offered in response to questions about why law enforcement investigated Mr. Gbenedio and what the investigation uncovered. Also, the testimony caused no prejudice under Rule 403, because Mr. Gbenedio’s own counsel first presented similar testimony.

Third, the district court did not abuse its discretion in allowing lay-witness agents to testify that Mr. Gbenedio had the requisite intent, in violation of the rule prohibiting expert witnesses from opining about a defendant’s mental state. On the one hand, the testimony was based on the agents’ experiences as investigators. On the other hand, the testimony was not based on scientific, technical, or other specialize knowledge. And unlike other cases, none of the agents were described to the jury as an expert.

Fourth, the district court did not abuse its discretion in preventing Mr. Gbenedio from using an officer’s testimony to impeach a government witness’s testimony. Because the officer would have confirmed a fact that the witness had already admitted, there was nothing for the officer to contradict under Rule 608(b). Further, the officer’s and the witness’s testimonies would have been cumulative under Rule 403.

Fifth, for these reasons, there was no error—much less a cumulative one.

Sixth, the district court did not clearly err by imposing a $200,000 fine. Mr. Gbenedio’s failure to cooperate with probation’s requests for financial information permitted an inference that Mr. Gbenedio had the ability to pay a fine but was concealing assets. Mr. Gbenedio did not object to parts of the presentence investigation report where probation indication that he failed to establish his inability to pay a fine. Mr. Gbenedio’s argument that his attorney was responsible for providing requested information might have supported an ineffective-assistance-of-counsel claim. But Mr. Gbenedio failed to identify competent evidence of the attorney’s deficient performance.

Boone: Affirming 840-Month Sentence

In United States v. Boone, No. 22-11153 (Apr. 9, 2024) (Jordan, Lagoa, Hull), the Court affirmed Mr. Boone's 840-month sentence.   

Mr. Boone pleaded guilty to using a minor to produce child pornography, and distributing and possessing child pornography, in violation of 18 U.S.C. §§ 2251 and 2252A.  The PSR recommended applying a five-level increase pursuant to U.S.S.G. § 4B1.5(b) because (1) the offense was a covered sex crime and neither § 4B1.1 nor § 4B1.5(a) applied and (2) Mr. Boone “engaged in a pattern of activity involving prohibited sexual conduct.”  As explained in the PSR, the pattern-of-activity enhancement applied because Mr. Boone produced child sexual abuse material on at least two separate occasions.  With a criminal history category of I and a total offense level of 43, Mr. Boone’s advisory guidelines range was life imprisonment.  Because Mr. Boone's statutory maximum sentences were 30 years for the production offense and 20 years for each of the two distribution and possession offenses, and because the statutory maximums were less than the advisory guidelines sentence of life, U.S.S.G. § 5G1.2 provided that the sentences “shall run consecutively,” which in turn yielded a total advisory guidelines sentence of 840 months.  

On appeal, Mr. Boone argued that the district court erred by (1) applying U.S.S.G. § 4B1.5(b)(1)’s pattern-of-activity enhancement based on two or three images all involving the same victim at around the same time, and (2) considering his military service as an aggravating rather than a mitigating factor in determining his sentence.  

The Court disagreed on both fronts.  With regard to the application of U.S.S.G. § 4B1.5(b)(1)’s pattern-of-activity enhancement, the Court found invited error because Mr. Boone--through trial counsel--noted agreement to the enhancement's application.  Additionally, the Court found no procedural error in applying the enhancement.  The Court reiterated that as to § 4B1.5(b)(1), it has held that the enhancement applies if the defendant engaged in prohibited sexual conduct on at least two separate occasions, regardless of whether the crimes were committed against the same victim or different victims.  The Court also found no procedural error in the district court's consideration of Mr. Boone's military service as an aggravating factor, rather than a mitigating one.        

Finally, the Court rejected Mr. Boone's substantive reasonableness challenge.  

Al Jaberi: Affirming Convictions and Sentences for Attempted Smuggling, Failure to Notify a Common Carrier, and Submitting False or Misleading Export Information

In United States v. Al Jaberi, No. 22-12852 (Apr. 5, 2024) (Lagoa, Brasher, Tjoflat), the Court affirmed Mr. Al Jaberi's convictions and sentences.

Mr. Al Jaberi was found guilty of smuggling in violation of 18 U.S.C. § 554(a) by willfully and knowingly attempting to export nine firearms from the United States, contrary to 18 U.S.C. § 922(e) and 13 U.S.C. § 305(a)(1); knowingly delivering firearms to a common carrier without giving the carrier written notice that the firearms were being transported or shipped, in violation of 18 U.S.C. § 922(e); and knowingly causing a freight forwarder to submit false and misleading export information through a Shippers Export Declaration and an Automated Export System by falsely declaring the contents of a shipment to be only spare auto parts, in violation of 13 U.S.C. § 305(a)(1).  

On appeal, he first argued that there was insufficient evidence of guilt because law enforcement neither surveilled nor investigated the location where the shipping container was loaded; failed to offer evidence about any communications between him and anyone in Iraq about the firearms; and government witnesses offered inconsistent testimony about the location of the box containing the firearms.  The Court disagreed, reviewing his arguments for plain error because although he moved for a judgment of acquittal, he did so on different grounds than those raised on appeal. 

He also argued that failure to notify a common carrier and submitting false or misleading export information are both lesser included offenses of smuggling and therefore asserts that his convictions violate the Double Jeopardy Clause.  The Court disagreed, finding the error not plain, and noting that a review of the three statutes under which Mr. Al Jaberi was convicted reveals that each statute entails different elements from the others. 

Next, he argued that his due process rights were violated because the Government failed to correct false witness testimony and made prejudicial statements during opening and closing arguments.  The Court, reviewing for plain error, disagreed.  

Finally, he argued that his sentences are procedurally and substantively unreasonable because they subjected him to double jeopardy and were greater than necessary.  The Court found his sentence procedurally reasonable because there was no double jeopardy violation.  The Court also found his sentence to be substantively reasonable because the district court did not fail to consider relevant factors due significant weight, give significant weight to an improper factor, or clearly err in considering the proper factors.   

Handlon: Affirming Denial of Motion for Compassionate Release Under Old Policy Statement

In United States v. Handlon, No. 22-13699 (Apr. 3, 2024) (Rosenbaum, Grant, Ed Carnes) (per curiam), the Court affirmed the denial of a motion for compassionate release.  

Mr. Handlon moved for compassionate release, contending that his eighty-five-year-old father had severe medical issues and needed help.  He requested that he be released to spend what time he had left with his father.  The district court denied the motion because Mr. Handlon did not provide any supporting documentation regarding his father's condition or care, or whether he was the only available caretaker.  Mr. Handlon tried to provide the court with further information, which the court construed as a motion for reconsideration and denied.  

This Court noted that when Mr. Handlon filed his motion, the Sentencing Commission had not yet amended its policy statement, and the district court was bound by Bryant's holding regarding the old catchall category--"other reasons" as determined by the Director of the Bureau of Prisons--that Congress delegated the power to define what should be considered extraordinary and compelling reasons for a sentence reduction to the Sentencing Commission, not the courts.  As a result, the Court held that Mr. Handlon was ineligible for compassionate release because he failed to present an extraordinary and compelling reason for relief recognized by the Sentencing Commission’s policy statement.  That is, Mr. Handlon's need to care for an incapacitated parent was not included in the list of reasons the Sentencing Commission considered to be “extraordinary and compelling,” so his motion was properly denied.

The Court further noted, though, that since the parties litigated this case, the policy statement has been amended to include in its definitions of “extraordinary and compelling reasons” a circumstance that is closer to the ground Mr. Handlon asserted: “The incapacitation of the defendant’s parent when the defendant would be the only available caregiver for the parent.”  While it could not retroactively apply that amendment to this appeal--as urged by Mr. Handlon--the Court agreed that Mr. Handlon could file a new motion for compassionate release.   

  

Vargas: No Speedy Trial Violation With 35-Month Delay Between Indictment and Arrest

In United States v. Vargas, No. 22-10604 (Apr. 3, 2024) (Jordan, Lagoa, Marcus), the Court affirmed the district court's denial of Mr. Vargas's motion to dismiss his indictment as a result of a 35-month delay between indictment and arrest.  

Mr. Vargas was charged--in September 2018--with conspiracy to possess with intent to distribute one kilogram or more of heroin and possession with intent to distribute one kilogram or more of heroin.  He was indicted in Florida, but was living in New York at the time.  He was not arrested until nearly 3 years later.  The government made immediate attempts to arrest him--with South Florida DEA official reaching out to a number of groups with the New York Division of the DEA to assist--but its efforts stalled around September 2019.  Then, the global COVID-19 pandemic hit, and no activity in Mr. Vargas's case occurred during the first sixteen months of the pandemic.  Mr. Vargas was detained by immigration officials in New York in July 2021, released and re-arrested by the U.S. Marshals Service in August 2021, and finally arraigned in September 2021. 

Mr. Vargas moved to dismiss his indictment, claiming a violation of his right to a speedy trial on account of the delay between indictment and arrest.  The district court denied the motion, finding that the first three Barker factors did not weigh heavily against the government.  More specifically, the district court found that the government had not acted in bad faith or deliberately, but rather had been "merely negligent" in its efforts to apprehend Mr. Vargas.  

This Court agreed, finding that the first three Barker factors did not weigh heavily against the government.  It found that agents had acted in good faith and with due diligence.  Additionally, the Court noted that an emergency global health epidemic was "exactly the kind of 'complicating factor' that would reduce the government’s responsibility for a delay in making an arrest."  Evidence adduced at a hearing in the district court demonstrated that the pandemic had encumbered the government's efforts to arrest Mr. Vargas.  So, in the Court's view, a global pandemic like COVID-19 that is beyond the control of all the parties involved justifies an appropriate delay, more akin to a delay due to a missing witness.  Per the Court, even if little activity takes place for a year or two, the government will not necessarily be held responsible for the delay, as long as the government’s conduct was unintentional and in good faith, even if negligent.  The Court also found that while Mr. Vargas had timely asserted his constitutional right to a speedy trial, that did not excuse him from showing prejudice under the fourth Barker factor.  With regard to prejudice, the Court noted that any delay did not affect the evidence, the charges, the legal defenses or strategies, or any other aspect of the criminal proceedings.  

Judge Jordan concurred in the judgment.  He wrote separately to note that, with regard to the second Barker factor--the reason for the delay--the lower courts were "way too charitable in describing the government's conduct."  He specifically disagreed with the lower court's characterization of law enforcement's efforts as diligent.  Additionally, though the pandemic was a complicating factor, agents were still able to communicate with one another electronically or by phone about pending matters, and here, "[t]he record contains nothing, absolutely nothing, about any communications between agents during the pandemic."  Were he not bound by the clear error standard on appeal, Judge Jordan noted that this case presented "a set of facts [that] called for a ruling which might have a deterrent effect on government apathy."