Eleventh Circuit Court of Appeals - Published Opinions

Thursday, April 15, 2021

Russell: Vacating and Remanding Denial of Motion for Sentence Reduction Under First Step Act Where District Court Construed Letter Requesting Counsel as Motion Seeking a Sentence Reduction

In United States v. Russell, No. 19-12717 (Apr. 15, 2021) (Jordan, Jill Pryor, Branch), the Court vacated the district court's denial of a motion for a sentence reduction under the First Step Act, and remanded for further proceedings.  

The defendant pleaded guilty to possessing with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A).  The factual basis of the plea, to which the defendant agreed, noted that law enforcement seized a total of 441.2 grams of crack cocaine from the defendant.  

After passage of the First Step Act, defendant sent the district court a one-page letter, asking the court to appoint counsel to assist him in filing a motion for a sentence reduction under the First Step Act.  The district court construed that letter as a motion requesting a sentence reduction under the First Step Act and directed the government to file a response.  The district court, in a two-paragraph order, then denied the defendant a sentence reduction. The court found him ineligible for relief because his offense involved 441.2 grams of crack cocaine. The district court also noted that even if the defendant were eligible for a sentence reduction, the court would not exercise its discretion to grant such a reduction. The defendant filed a pro se motion to reconsider, noting his eligibility for relief as well as his rehabilitation.  The district court denied that motion.  The Office of the Federal Public Defender then filed a motion for appointment of counsel to represent the defendant on appeal, which the court granted.  

The Court, on appeal, considered whether the district court abused its discretion when, after construing the defendant's letter requesting counsel as a motion for a sentence reduction, it refused to grant him a sentence reduction and then denied his motion for reconsideration. The Court answered in the affirmative.  The Court, applying Jones, held that a vacatur and remand was warranted because the defendant was eligible for a sentence reduction, and it was unclear whether the district court understood that it had the authority to reduce his sentence.  The Court found that it could not rely on the district court's statement that it would not exercise its discretion to reduce the defendant's sentence even if he was eligible for relief because the court did not provide enough of an explanation to permit meaningful appellate review.   

The Court also noted, in a footnote, its "serious concerns" about the district court's decision to recharacterize the defendant's letter as a motion for a sentence reduction.  But, the Court noted that it need not decide whether the district court's orders should be vacated because the district court purported to rule on a motion for a sentence reduction without giving him an opportunity to be heard, as the concurring judge proposed.  Instead, the Court maintained that a vacatur and remand were appropriate because the district court's orders were inadequate to allow for meaningful appellate review.  

Concurring in the judgment, Judge Branch noted that she would have vacated and remanded on different grounds.  She would not have reached the eligibility determination under Jones because she believes the district court erred as a matter of law in recharacterizing the defendant's letter without any notification or warning to the defendant.  Instead, she would have remanded for the district court to consider the defendant's letter requesting counsel.              

Thursday, April 08, 2021

Elysee: Affirming 922(g) Conviction and Sentence After Disallowing Testimony Regarding Another Person's Confession to the Charged Crime

In United States v. Elysee, No. 18-14214 (Apr. 8, 2021) (Newsom, Tjoflat, Ginsburg), the Court affirmed the defendant's conviction and sentence for being a felon in possession of a firearm. 

This case involved police pursuit of a Kia Optima, thought to contain a man in the passenger seat--dressed in yellow sneakers and a blue and yellow shirt and pant--who had been observed by officers jumping out of the car, pointing a gun at a Ford Mustang, and then speeding away.  Police pursued the Optima, and it eventually hit a light pole.  The passenger-side door opened and a man got out holding a black firearm, thought to be wearing a yellow and blue top and yellow shoes.  The man dropped the firearm and ran away.  He was eventually found curled up on the floorboard of another parked car.  He was arrested.  That man was the defendant.  Officers discovered a firearm near the right front tire of the Optima.  One week later, Darius Deen, the other occupant of the Optima, went to the police station and told Detective Raul Cabrera that he, and not the defendant, was the Optima's passenger and that the firearm found at the scene was his.  Defendant was charged with being a felon-in-possession, proceeded to trial, and was found guilty.          

On appeal, defendant raised four arguments: (1) the district court abused its discretion in precluding him from questioning Detective Cabrera about the substance of Deen's confession to show its effect on the listener; (2) the district court abused its discretion by admitting into evidence the document establishing defendant's prior conviction for armed robbery without redacting the document's references to "armed robbery" and "deadly weapon"; (3) the indictment was insufficient to charge a 18 U.S.C. § 922(g) offense after Rehaif, which was decided after the defendant's conviction; and (4) the district court erred in finding that a prior conviction for Florida armed robbery qualified as a "violent felony" under the ACCA. 

With regard to the first issue, defendant argued that the district court erred in invoking the hearsay rule to preclude him from questioning Detective Cabrera about the substance of Deen's confession to show its effect on the listener--the "effect" being that neither Cabrera nor any other office involved in the investigation did any additional digging to determine whether Deen's confession was truthful.  Defendant argued that this showed that the police failed to act as reasonably diligent officers under the circumstances because their minds were made up that the defendant was the culprit.  The Court, after a "painstaking examination of the trial transcript," including the transcript of a jail call wherein the defendant allegedly admitted to cooking up a scheme to have someone else confess to the crime, rejected defendant's arguments. While the Court agreed that Deen's statements would not have been hearsay if offered merely to demonstrate their "effect on the listener," his confession was still inadmissible because the "affirmative defense" it intended to prove--that Cabrera's conduct in response to the confession fell below the reasonable officer standard of performance--was irrelevant, and the confession's probative value was outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, and wasting time under FRE 403.  The Court refused to hold that a defendant in a criminal case may use out-of-court statements to mount an attack on the quality of the investigation that led to his indictment.  The Court similarly refused to acknowledge the existence of an affirmative defense based upon the failure of police to conduct an investigation as reasonably diligent officers.  

With regard to the indictment issue, the Court reviewed for plain error and found that defendant failed to show a reasonable likelihood that, but-for the error in his indictment, he would not have been found guilty at trial.  

With regard to allowing the jury to see the unredacted document relaying defendant's prior convictions, the Court found no clear abuse of discretion.  

Finally, the Court rejected defendant's arguments regarding Florida armed robbery not being a "violent felony" under the ACCA as precluded by the Supreme Court's decision in Stokeling.    
         


  

Tuesday, April 06, 2021

Parker: Affirming Denial of Davis-Based § 2255 Multiple-Predicate Motion

In Parker v. United States, No. 19-14943 (Apr. 6, 2021) (Lagoa, Hull, Marcus), the Court affirmed the denial of a § 2255 motion challenging § 924(o) and § 924(c) convictions predicated upon multiple crimes.  

This case involved an ATF reverse-sting operation with the goal of robbing a home believed to be the cocaine stash house of a Colombian cartel.  Movant was charged with the following: (1) conspiracy to commit Hobbs Act robbery; (2) conspiracy to possess with intent to distribute at least 5 kg or more of cocaine; (3) attempt to possess with intent to distribute at least 5 kg or more of cocaine; (4) conspiracy to use and carry a firearm during and in relation to a crime of violence and a drug trafficking offense; (5) using and carrying a firearm during and in relation to a crime of violence and a drug trafficking offense; (6) possessing a firearm as a convicted felon; (7) possessing a firearm as an unlawful alien; and (8) unlawfully entering the United States after having previously been removed.  He proceeded to trial and was found guilty on all counts. 

The Court affirmed the district court's denial of movant's motion because he failed to overcome procedural default, and because even if he could, he suffered no harm from the inclusion of an invalid predicate offense in his indictment and jury instructions.   

As to procedural default, movant advanced only an actual innocence argument, which the Court held failed because, like the movant in Granda, it was undeniable that movant's drug trafficking predicates were inextricably intertwined with the invalid Hobbs Act conspiracy predicate.  Therefore, it was "inconceivable" that the jury could have found that the movant conspired to, and did, use and carry a firearm in furtherance of his conspiracy to rob the house without also finding at the same time that he did so in furtherance of a conspiracy and attempt to obtain the cocaine in the same house.

The Court further noted that though movant's jury instructions suffered a defect not present in Granda--as to the § 924(o) charge, the court failed to instruct the jury that it had to unanimously decide which predicate or predicates supported the conviction--this did not change the outcome.  The predicate offenses were inextricably intertwined so that if the jurors found one applicable, they had to reach the same conclusion with respect to the others.   

The Court once again rejected movant's reliance upon the categorical approach, as well as on Alleyne.  Though the Court in Granda reached its determination regarding Alleyne in the context of a harmless error analysis, the question was not meaningfully different when addressed in an actual innocence context.

The Court also rejected movant's reliance upon In re Gomez, and noted that even though the movant failed to argue cause and prejudice to excuse any procedural default, its prior precedent in Granda prevented such a showing.        

Finally, the Court held that movant could not prevail on the merits of his claim because the jury could not have found that movant's gun use or gun conspiracy was connected to his conspiracy to rob the stash house without also finding that they were connected to his conspiracy and attempt to possess with intent to distribute the cocaine he planned to rob from the same stash house.  Any error was harmless.  In so holding, the Court once again relied extensively on its prior precedent in Granda.  The Court disagreed with movant's suggestion that Granda must not be followed because it conflicted with the Court's earlier decision in Parker.            

      

Wednesday, March 24, 2021

Pendergrass: Affirming Robbery Convictions with Similar Modus Operandi

In United States v. Pendergrass, No. 19-13681 (Mar. 24, 2021) (Rosenbaum, Luck, Anderson), the Court affirmed the defendant's convictions for Hobbs Act robbery and for carrying a firearm in furtherance of those robberies.

This case stems from a string of five robberies, all of which involved certain commonalities: a black-and-silver pistol held by a left-handed man; that same man dressed in a red hooded shirt under a long-sleeved black shirt with a distinctive white pattern on it; a single strap cross-body backpack; a phone number ending in 1011 that pinged off of cell towers that covered the areas of the robberies; bullets recovered from the scenes of the robberies that had cycled through the same firearm.

Prior to trial, defendant moved to suppress evidence from a phone recovered from his car searched for "handguns, long guns, drugs, bullets, blood and/or DNA" in an unrelated incident.  On the phone, officers found pictures and videos incriminating the defendant in the robberies.  The district court granted the motion to suppress the phone and its contents. The district court, however, denied defendant's motion to exclude Google geo-location data showing his whereabouts during the robberies.  The district court also denied defendant's motion to continue the trial on account of his newly appointed attorney, as well as his motion to dismiss a juror for cause because she was a probation officer.

Defendant raised six challenges to his convictions.  First, he argued that he was prejudiced by the district court's denial of his motion to continue trial.  The Court held that the district court did not abuse its discretion in denying defendant a continuance because defendant had two years to prepare for his trial, did not point to any evidence that would have been presented had the continuance been granted, his new counsel was prepared, and the evidence presented at trial was not voluminous or complicated.   

Second, defendant challenged the district court's failure to dismiss for cause the juror who was a probation officer.  The Court held that the district court did not abuse its discretion in declining to dismiss the juror because those who engage in community supervision are not covered by 28 U.S.C. 1863, which provides that members of the fire and police departments are barred from jury service.  The Court's holding was in line with the Tenth Circuit.  

Third, the Court held that any error in admitting the Google geo-location data was harmless beyond a reasonable doubt because the evidence introduced against the defendant was "crushing."  The Court so held without deciding whether the Google geo-location data should have been excluded as fruit of the poisonous tree.  

Fourth, the Court held that evidence sufficiently supported defendant's convictions on all five robberies because, when viewed all together, the evidence established a modus operandi and a pattern.  In so holding, the Court included a chart of the robberies and their shared similarities.  The Court also noted that when modus operandi evidence supports an inference that the same person committed multiple crimes, a jury can consider identity evidence from other robberies.

Fifth, the Court, reviewing challenges to the case agent's testimony for plain error, found no error.     

Sixth, the Court held that even assuming error, cumulative error did not warrant vacatur of the convictions.  Defendant failed to show that his substantial rights were affected by the aggregation of the alleged errors.  

Wednesday, March 17, 2021

Mayweather: Reversing Convictions for Hobbs Act Extortion and Remanding for New Trial

In United States v. Mayweather, No. 17-13547 (Mar. 17, 2021) (Branch, Tjoflat, Ed Carnes), the Court reversed convictions for Hobbs Act extortion and remanded for a new trial.  

The case stems from a large-scale FBI sting operation in response to concerns that there were Georgia Department of Corrections ("GDC") officers accepting bribes to smuggle contraband into prison.  The FBI arranged for an undercover informant to set up fake drug deals with uniformed corrections officers outside of the prison walls.  The corrections officers were instructed to wear their GDC uniforms as they transported the drugs with the expectation that police officers would not stop or detain them as a professional courtesy.  As a result, the defendants in this case were charged with, among other charges, Hobbs Act extortion.  

Defendants sought to present the jury with an entrapment instruction, which the district court denied.  The defendants also asked that the court provide the jury with the pattern Hobbs Act jury instruction updated post-McDonnell v. United States, 136 S. Ct. 2355 (2016), and to provide the jury with a definition of "official act," which the court also denied.  This appeal followed. 

The Court found that the district court erred on both its failure to give an entrapment jury instruction and to provide the jury with a definition of "official act."  As to the entrapment jury instruction, the Court clarified that to determine whether a defendant has produced enough evidence to merit an entrapment defense and jury instruction, a court need look only at whether there was sufficient evidence produced to raise the issue of government inducement, and not at whether the defendants were actually entrapped, which is a jury question.  With that in mind, the Court found that two of the four defendants had met their burden of production as to inducement, and therefore were entitled to an entrapment defense jury instruction.  The district court's failure to give the instruction resulted in reversible error, not harmless error.  The Court also rejected the government's contention that the defendants, having been recruited by other codefendants rather than a government agent, could at most claim only derivative entrapment, which the Eleventh Circuit does not recognize.    

As to the Hobbs Act extortion instruction, the Court first noted that the government bears the burden of proving that defendants took or agreed to take an "official act" to meet their burden of proving Hobbs Act extortion.  The Court then held that the district court did not abuse its discretion by refusing to give the post-McDonnell pattern jury instruction because that instruction could have been misleading to the jury on the particular facts of this case.

The Court held, however, that the district court was required to define "official act" in the charge it provided the jury because the government's definition of "official act" was too expansive, and therefore made it difficult for ordinary people to understand what conduct is prohibited.  The district court's failure to do so was reversible error because a reasonable likelihood exists that the jury applied the instruction given in an improper manner.   

Thursday, March 11, 2021

Granda: Affirming Denial of Davis-based Multiple Predicate § 2255 Motion as Procedurally Defaulted and on the Merits

In Granda v. United States, No. 17-15194 (Mar. 11, 2021) (William Pryor, Jordan, Marcus), the Court affirmed the district court's denial of Granda's second or successive § 2255 motion after United States v. Davis, 139 S. Ct. 2319 (2019), challenging his multiple predicate § 924(o) conviction.    

Granda's case involved a reverse sting operation, wherein Granda was charged with: (1) conspiracy to possess with intent to distribute cocaine; (2) attempting to possess with intent to distribute cocaine; (3) conspiracy to commit Hobbs Act robbery; (4) attempted Hobbs Act robbery; (5) attempted carjacking; (6) conspiracy to use and carry a firearm during and in relation to a crime of violence and drug-trafficking crime; and (7) possession of a firearm in furtherance of a crime of violence or drug trafficking crime.  

The Court affirmed the denial of Granda's § 2255 motion for two reasons: (1) he could not overcome procedural default, and (2) his claim failed on the merits.    

The Court sua sponte addressed its subject matter jurisdiction over Granda's § 2255 motion.  Granda sought and received leave to file a second or successive Johnson challenge--the Supreme Court had not yet decided Davis, so the Court did not (and could not then) certify that Granda's second motion contained the new rule of constitutional law Davis announced.  Nevertheless, the Court found that it did indeed have jurisdiction over Granda's motion because to resolve the Johnson claim the Court did authorize, the Court was obligated to apply the controlling Supreme Court law of Davis.      

First, the Court held that Granda's claim was procedurally defaulted, and that he could not establish cause, actual prejudice, or actual innocence.  As to cause, the Court found that Granda's claim was not sufficiently novel to establish cause.  As for actual prejudice, the Court stressed that actual prejudice means more than just the possibility of prejudice; it requires that the error worked to the movant's actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.  That is, movant had to show a substantial likelihood that the jury relied only on the constitutionally invalid predicate, because reliance on any of the other predicates would have provided a wholly independent, sufficient and legally valid basis to convict.  Here, after reviewing the evidence, the Court found that Granda could not make that showing because of the inextricably intertwined nature of his convictions.  That is, the crimes were so inextricably intertwined that no rational juror could have found that Granda carried a firearm in relation to one predicate but not the others.  Finally, the Court found that Granda could not establish that he was actually innocent.  The Court clarified that actual innocence means factual innocence, not mere legal innocence.  To demonstrate actual innocence of the § 924(o) offense, Granda would have had to show that no reasonable juror would have concluded that he conspired to possess a firearm in furtherance of any of the valid predicate offenses, which the Court held he could not--nor did he attempt to--do.  'The same shortcoming that prevents Granda from showing actual prejudice . . . makes it impossible for Granda to show that his § 924(o) conviction was in fact based on the conspiracy-to-rob predicate."  

Finally, the Court addressed the merits of Granda's claim.  The Court held that the inextricability of the alternative predicate crimes compelled the conclusion that the error Granda complained of--instructing the jury on a constitutionally invalid predicate as one of several potential alternative predicates--was harmless.  The Court clarified that on collateral review, the harmless-error standard mandates that relief is proper only if the court has grave doubt about whether a trial error of federal law has substantial and injurious effect or influence in determining the jury's verdict.  That is, in line with Brecht v. Abrahamson, 507 U.S. 619 (1993), a court may order relief only if the error resulted in actual prejudice.  On the record in Granda's case, the Court did not have "grave doubt" about whether Granda's § 924(o) conviction rested on an invalid ground.  In so holding, the Court declined to adopt Granda's arguments raising Stromberg v. California, 283 U.S. 359 (1931), or the categorical approach.     

Judge Jordan concurred in part and concurred in the judgment.  He noted that because Granda could not prevail on the merits, he would not have addressed the issue of procedural default.      

Wednesday, March 10, 2021

Rogers: Affirming 360-Month Sentence for Production and Distribution of Child Pornography

In United States v. Rogers, No. 18-13532 (Mar. 9, 2021) (Jordan, Jill Pryor, Branch), the Court affirmed defendant's sentence after he pleaded guilty to two counts of production of child pornography, in violation of 18 U.S.C. § 2251(a), and one count of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2).  

Defendant raised various challenges to his 360-month sentence: (1) the district court improperly attributed a four-level enhancement under U.S.S.G. § 2G2.2(b)(4) for sadism/masochism; (2) application of both U.S.S.G. §§ 2G2.2(b)(5) and 4B1.5 was arbitrary and constituted impermissible double counting; (3) the district court improperly applied a two level enhancement under U.S.S.G. § 2G2.2(b)(6) for the use of a computer; (4) the district court erred in excluding certain evidence at his sentencing hearing; and (5) his sentence was substantively unreasonable. 

As to application of the four-level enhancement under § 2G2.2(b)(4), the Court found its application appropriate because the image depicted the defendant's hands around the throat of the minor victim as she lay nude on the bed, appearing as though he was choking her, thereby, at a minimum, depicting violence.  In so finding, the Court construed the words from the guideline--"sadistic," "masochistic," and "depictions of violence"--according to their ordinary and natural meaning. 

The Court next considered whether application of both § 2G2.2(b)(5)--which provides for a five-level guidelines increase if the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor--and § 4B1.5--which provides for a five-level increase where the defendant's instant offense of conviction is a covered sex crime and the defendant engaged in a pattern of activity involving prohibited sexual conduct--was arbitrary and constituted impermissible double counting.  Reviewing for plain error, the Court held that the defendant had failed to establish plain error.  Reviewing the language of the guidelines, the Court found that their plain language established that the Sentencing Commission intended for the enhancements to apply cumulatively.  

As for defendant's challenge to the two-level enhancement under § 2G2.2(b)(6) for the use of a computer for the distribution of child pornography, the Court dismissed it as squarely foreclosed by United States v. Little, 864 F.3d 1283 (11th Cir. 2017).  

Next, the Court addressed the district court's exclusion of evidence at the sentencing hearing regarding two pending state statutory rape cases involving the victim.  The defendant argued that the district court violated his constitutional rights under the confrontation clause, his right to due process, and his right to present a defense when it prevented him from cross-examining the detective about the victim's involvement in two other pending statutory rape cases involving adult men, which he maintains was valuable impeachment and mitigation evidence.  The Court held that the district court's denial of defendant's request did not violate his constitutional rights as the confrontation clause and right to cross-examination do not extend to non-capital sentencing proceedings.  The Court also did not find any abuse of discretion in the district court's decision to disallow the defendant the cross-examination he sought.    

Finally, the Court held that defendant's within-guidelines 360-month sentence was substantively reasonable.  


Knights: Race Not A Factor in Seizure Inquiry

In United States v. Knights, No. 19-10083 (Mar. 10, 2021) (William Pryor, Rosenbaum, K. Michael Moore), the Court granted defendant's motion for panel rehearing, vacated its original opinion (published August 3, 2020), and substituted in its place a new opinion again affirming the district court's denial of defendant's motion to suppress.   

Two officers saw defendant and a friend around 1:00 a.m. in a car that was parked in the front yard of a home in a "high crime" area.  Suspecting that the men might be trying to steal the car, officers parked near the car, approached the car with a flashlight, and knocked on the driver's side window, where defendant was seated.  When the defendant opened the car door, officers smelled marijuana and searched the car, finding ammunition and firearms.  Defendant was charged with being a felon in possession.  

Defendant moved to suppress his admissions and the evidence found during the officers' search, arguing that they were fruits of an illegal seizure that occurred when--without reasonable suspicion--officers parked behind his car, or, at the latest, when they walked up to his car.  The district court found that the officers did not seize the defendant when they parked their patrol car and walked up to him because the encounter was consensual--the defendant was free to walk or drive away.  On appeal, the defendant argued that his perspective as a young black man was relevant to the question of whether a seizure occurred.  In its original opinion, the Court agreed that the age and race of a suspect may be relevant factors, but concluded that they were not decisive in defendant's appeal.  In defendant's petition for rehearing, he argued that the Court erred by not treating his identity as a factor that mattered, and that the correct inquiry was whether a reasonable young black man would have felt free to walk or drive away from the police.

Upon reconsideration, the Court once again concluded that the encounter was consensual, and that a reasonable person would have felt free to leave.  The officers did not activate their patrol-car lights or siren, display their weapons, touch the defendant, or even speak to him, much less issue any commands.  Their use of a flashlight did not communicate a show of authority either.  The Court found persuasive the fact that the defendant's friend did, in fact, ignore the officers and walk away.  In response to defendant's argument that a reasonable person would not have walked away because doing so would have required abandoning his car in a high-crime area, the Court found that two officers were near the car and defendant could have easily returned as soon as they left. 

The Court went on to hold that, unlike age, the race of a suspect is never a factor in the threshold seizure inquiry (though it may be considered when determining the voluntariness of a seizure).  The existence of a seizure is an objective question, so the Court asks whether a reasonable person would have believed he was not free to leave in light of the totality of the circumstances.  The circumstances of the situation are the key to this inquiry.  A suspect's personal characteristics--such as age--are considered only insofar as they have an objectively discernable relationship to a reasonable person's understanding of his freedom of action.  The Court concluded that most personal characteristics, including race, do not lend themselves to objective conclusions.  The Court further noted that even if it were possible to derive uniform attitudes from a characteristic like race, there is no workable method to translate general attitudes towards the police into rigorous analysis of how a reasonable person would understand his freedom of action in a particular situation.  And finally, the Court noted that even if it could devise an objective way to consider race, it could not apply a race-conscious reasonable-person test without running afoul of the Equal Protection Clause.  

Judge Rosenbaum, concurring in the judgment only, wrote separately to "emphasize the perils that ambiguous police interactions can cause and to respectfully suggest that the Supreme Court consider adopting a bright-line rule requiring officers to clearly advise citizens of their right to end a so-called consensual police encounter."