Eleventh Circuit Court of Appeals - Published Opinions

Friday, May 27, 2022

Gardner: "Maximum Term of Imprisonment" for ACCA "Serious Drug Offense" is Defined by Statutory Maximum, not High end of Presumptive Guideline Range

In United States v. Gardner, No. 20-13645 (May 27, 2022) (Newsom, Tjoflat, Hull), the Court affirmed the defendant’s ACCA sentence.

The district court applied the ACCA based prior Alabama drug convictions.  The defendant argued that his convictions did not qualify as “serious drug offenses” because they did not have a “maximum term of imprisonment” of ten years or more.  The Court held that the “maximum term of imprisonment” was determined by the statutory maximum under state law.  The Court rejected the defendant’s argument that it was instead determined by the high-end of the state’s presumptive guideline range.

Monday, May 23, 2022

Jimenez-Shilon: 9225(g)(5)(A), prohibiting illegal aliens from possessing guns, does not violate Second Amendment

In United States v. Jimenez-Shilon, No. 20-13139 (May 23, 2022) (Newsom, Branch, Brasher), the Court held that 18 U.S.C. 922(g)(5)(A)—which prohibits illegal aliens from possessing firearms—does not violate the Second Amendment.

The Court held that illegal aliens do not have Second Amendment rights.  The Court assumed, for the sake of argument, that the defendant here was among the “people” referenced in the Constitution.  Nonetheless, after conducting an extensive historical analysis, the Court concluded that illegal aliens were not afforded the right to bear arms in England or colonial America.  In so concluding, the Court joined seven circuits to address the issue, which all reached the same conclusion.  Accordingly, the Court held that 922(g)(5)(A) does not violate the Second Amendment.

Judge Newsom authored a separate 10-page concurrence about his views more generally on how to conduct a Second Amendment analysis in future cases.

Tuesday, May 17, 2022

Coglianese: Upholding Supervised Release Restriction on Computers and Electronic Data Storage Medium in Child Sex Case

In United States v. Coglianese, No. 20-12074 (May 17, 2022) (William Pryor, Jordan, Brown (N.D. Ga.)), the Court affirmed the defendant’s low-end 168-month for child sex crimes.

After upholding the procedural and substantive reasonableness of the sentence, the court upheld a special condition of supervision restricting the defendant from accessing computers and the internet, and from possessing any electronic data storage medium, without prior approval by probation.  The Court had uniformly upheld computer restrictions in sex offender cases where, as here, the defendant could seek permission from probation, including in decisions issued after the advent of smartphones.  The defendant argued that the restriction on an “electronic data storage medium” was overbroad and included everyday items like a modern television and alarm system, but the Court concluded that the ordinary meaning of the phrase referred to a flash drive and other devices that can store and transmit information for processing by a computer.  It was therefore tailored to the defendant’s offense and neither overbroad nor an abuse of discretion.

Thursday, May 12, 2022

Rodriguez: Affirming Sentence for Trafficking 200kg of Meth

In United States v. Rodriguez, No. 20-14681 (May 12, 2022) (Jill Pryor, Grant, Marcus), the Court affirmed the defendant’s 135-month sentence for his role in a conspiracy trafficking methamphetamine.

First, the Court upheld the district court’s decision to attribute 200 kilograms of meth to Rodriguez after considering the scope of the enterprise, his particular role, and the quantity of drugs that would be reasonably foreseeable in light of his role.  This case involved a large importation/distribution enterprise driving drugs across the Mexico border for distribution, and then wiring money back to the cartels in Mexico.  Rodriguez acted jointly with his co-conspirators and participated in the conspiracy in six different ways, five of which included directly transporting drugs.  And, even though he played a “minor role” in the conspiracy, that did not preclude attributing the full quantity of drugs to him where that quantity was reasonably foreseeable.

Second, the Court upheld an enhancement for possession of a firearm because his co-conspirator had stored a firearm at the stash house, and that was reasonably foreseeable, as Rodriguez effectively admitted at sentencing.

Third, the Court lacked jurisdiction to consider the argument that the district court erroneously failed to grant a downward departure under the Guidelines.  Appellate review is available only where the district court incorrectly believed that it lacked authority to grant the departure, and nothing in the record suggested that the district court harbored such a misunderstanding.

Finally, the Court concluded that the low-end sentence was not substantively unreasonable.  Nor did the district court abuse its discretion in declining to impose a downward variance.

Tuesday, May 10, 2022

Moon: Sixth Amendment Structural Right to a Public Trial is Waivable

In United States v. Moon, No. 20-13822 (May 10, 2022) (Jill Pryor, Branch, Hull), the Court affirmed the defendant’s child pornography convictions.

First, the Court upheld the denial of a motion to suppress videotapes found during the execution of an unrelated search warrant on the defendant’s medical office.  The Court concluded that the search was within the scope of the warrant because it referred to “videotapes” and “tapes.”  Thus, the officer was entitled to briefly examine the tapes, as that was the only way to determine their relevance to the crime.  The Court rejected the defendant’s argument that the videotapes were too obsolete to contain criminal evidence, as the office contained a VCR as well as a hidden surveillance camera.

Second, the Court upheld the district court’s closures of the courtroom to display sensitive evidence.  The Court found that the parties entered into a pre-trial agreement to do so.  The Court joined other circuits in holding that the structural right to a public trial is waivable.  And the Court concluded that the defendant waived that right by entering the pre-trial agreement, affirmatively consenting to the closure at various points early in the trial, and subsequently failing to object to any later closures that purportedly exceeded the scope of the agreement.

Finally, the Court briefly found no abuse of discretion in the district court’s: denial of a motion for a Franks hearing; denial of a motion for recusal; and failure to give several requested instruction on the definition of “lascivious exhibition.”

Friday, May 06, 2022

Seabrooks: Reversing Denial of 2255 Motion Based on Rehaif

In Seabrooks v. United States, No. 20-13459 (May 6, 2022) (Wilson, Rosenbaum, Conway (MD Fla.)) (per curiam), the Court reversed the denial of a 2255 motion based on Rehaif, vacated the felon-in-possession conviction, and remanded for further proceedings.

The Court issued three holdings.  First, it agreed with the parties that Rehaif announced a  new “substantive” rule, and so it applied retroactively in initial 2255 motions.  Second, it held that Seabrooks’ Rehaif claim was not “procedurally barred” by his failure to raise that claim on direct appeal, since Rehaif was an intervening change in law.  And the government waived any argument about “procedural default” by failing to raise that defense in the district court.  Third, the Court held that the district court’s aiding and abetting instruction, which was erroneous in light of Rosemond and Rehaif, was not harmless because there was more than a reasonable probability that the jury relied on that theory to convict.

Thursday, April 28, 2022

Clark: Affirming Drug and Firearm Convictions

In United States v. Clark, No. 20-10672 (Apr. 28, 2022) (Jordan, Jill Pryor, Tjoflat), the Court affirmed Mr. Clark's convictions and sentence.  

Mr. Clark was convicted of possessing a firearm as a convicted felon, possessing methamphetamine with intent to distribute, and possessing a firearm in furtherance of a drug trafficking crime.  After a jury trial, he was sentenced to 360 months' imprisonment.  

Mr. Clark raised five issues on appeal.  First, he argued that the district court abused its discretion in denying his motion for a new trial based on the government's post-trial disclosure of Brady material about a Bureau of Alcohol, Tobacco, Firearms and Explosives special agent who had been internally disciplined for destroying evidence in a previous case involving an individual charged with distributing narcotics and being a felon in possession of a firearm (as a result of this agent's misconduct, one of the United States Attorney's Offices refused to accept future cases from him).  At Mr. Clark's trial, this special agent testified as an expert witness about the interstate nexus and gun identification.  The Court found no abuse of discretion because Mr. Clark received a fair trial with a "verdict worthy of confidence," even without the disclosure of Brady material.     

Second, Mr. Clark argued that the district court erred in denying his motion  to suppress the evidence seized as a result of a traffic stop and subsequent arrest.  Mr. Clark maintained that officers did not have reasonable suspicion or probable cause for a traffic stop in the first place, and no probable cause to search his car.  The officer who pulled over Mr. Clark consistently testified that he did so because Mr. Clark's car was weaving in and out of lanes, but he could not remember the details.  The Court noted that officers need not have perfect memory as to why they stopped an individual in order for probable cause to be found.  Additionally, the Court also found that officers had probable cause to arrest Mr. Clark, and, therefore, search him and his car incident to arrest.  

Third, Mr. Clark argued that the district court failed to specifically instruct the jury to apply the beyond-a-reasonable-doubt standard to the special verdict question of weight of methamphetamines discovered.  If the jury found that the weight was above 5 grams, that finding would raise the mandatory minimum to 5 years and the statutory maximum to 40 years.  Reviewing for plain error, the Court found that the district court erred, but found itself "powerless" to correct the error because Mr. Clark invited the error by affirmatively accepting the special verdict question.  The Court also noted that such an error--an Alleyne error--is not structural error, and noted that even if it were structural, the law is mixed on how a structural error interacts with the invited-error doctrine.  

Fourth, Mr. Clark argued that the district court abused its discretion when it admitted evidence of all eight of Mr. Clark's prior felony convictions, including a probation order that surveyed his lengthy arrest record, with regard to the felon-in-possession count.  He also argued that the records should have been redacted and that a limiting instruction should have been given.  The Court noted that since, post-Rehaif, the government must now prove that an individual knew he was a felon when he possessed the firearm, and Mr. Clark did not stipulate to his status as a convicted felon, the district court did not abuse its discretion in allowing the government to admit all eight convictions as to that element.  The Court refused to establish a brightline rule that would limit the number of convictions the government could introduce, noting that the number likely depended on the circumstances of each case.  The Court reviewed Mr. Clark's other contention--that the records should have been redacted and a limiting instruction given--for plain error, and found none.  The Court noted that though the arrest records had zero bearing on the knowledge element, the district court was under no affirmative obligation to sua sponte exclude them. 

Finally, Mr. Clark argued that the cumulative effect of the errors in his trial warranted reversal.  The Court disagreed.