Gruezo: Upholding MDLEA Conviction Over Various Statutory and Constitutional Challenges

In United States v. Gruezo, No. 22-11342 (May 5, 2023) (Newsom, Grant, Hull) (per curiam), the Court affirmed the defendant’s MDLEA convictions. After previously issuing this unpublished opinion without oral argument, the Court granted the government’s motion to publish the opinion.

First, the Court held that there was jurisdiction under the MDLEA. The defendant stipulated that the vessel had no indicia of nationality visible, and that the master had no claim of nationality when asked. That was enough, the Court held, to support jurisdiction. The Court went to explain that the statute did not require the Coast Guard to ask the master to make a claim of both nationality and registry because the statute is written in the disjunctive.

Second, the Court upheld the constitutionality of the MDLEA. The statute was not vague because it gave notice that, without a claim or nationality or registry, the vessel will be considered stateless.  The statute did not violate Miranda by failing to inform the master of the consequences for failing to make such a claim; an as-applied challenge was waived by the guilty plea, and a facial challenge was foreclosed by precedent. Finally, the statute did not violent due process for failing to require a minimum nexus to the United States, as that argument was foreclosed by precedent.

Third, the Court upheld the denial of a minor-role reduction. The defendant, a crewman for a short period of time, could not prevail by pointing to a broader criminal scheme, and his involvement was still serious and important because he knowingly participated in transporting a large quantity of cocaine, and he played an important role.

Hamilton: 3553(c)(1)'s Statement of Reasons Requirement Applies to Supervised Release

In United States v. Hamilton, No. 21-14266 (May 2, 2023) (Rosenbaum, Jill Pryor, Tjoflat), the Court—without oral argument—affirmed the defendant’s 40-year sentence and lifetime term of supervised release after pleading guilty to enticing a minor, sending interstate extortionist threats, and producing child pornography.

As to the term of imprisonment, the defendant argued that the district court erred by applying a four-level enhancement under U.S.S.G. 2G2.1(b)(4). However, the Court found it unnecessary to address that argument because his total offense level would have remained unchanged under the grouping rules in 3D1.4. Thus, any error was harmless.

As to supervised release, the defendant argued that the district court failed to state its reasons. The Court clarified that the requirement in 18 U.S.C. 3553(c)(1)—that the court state the reasons for a guideline-range sentence—applied to supervised release. And it re-affirmed that it reviews that issue de novo, even where a defendant does not object. However, the district court need not make two separate explanations—one for imprisonment and one for supervised release--because most of the 3553(a) factors are the same. In this case, the district court did not separately address the 3553(a) factors in connection with supervised release, but it did address several of those factors in connection with the term of imprisonment, and that explanation applied equally. And the defendant could always seek to modify his term of supervision in the future.

Somers: FL Agg Assault a "violent felony" under ACCA

In Somers v. United States, No. 19-11484 (Apr. 25, 2023) (Jill Pryor, Anderson, Marcus), the Court affirmed Mr. Somers's ACCA-enhanced sentence. 

Mr. Somers argued that his prior conviction for Florida aggravated assault with a deadly weapon could not serve as an ACCA predicate because it can be committed with a mens rea of recklessness.  

The Court disagreed, and held that, because aggravated assault under Florida law requires a mens rea of at least knowing conduct, it qualifies as an ACCA predicate offense under Borden.

In so holding, the Court relied on guidance from the Florida Supreme Court, which held that the first element of the assault statute, section 784.011(1), requires not just the general intent to volitionally take the action of threatening to do violence, but also that the actor directs the threat at a target, namely another person.  That is, the Florida Supreme Court held that the Florida assault statute demands the specific intent to direct a threat at another person and therefore cannot be violated by a reckless act.   

Rolle: Holding § 1324(a) Has Extraterritorial Reach

In United States v. Rolle, No. 19-11354 (Apr. 14, 2023) (Wilson, Jordan, Brasher), the Court affirmed the district court's denial of Mr. Rolle's motion to dismiss the indictment. 

Mr. Rolle was charged with one count of conspiracy to encourage and induce aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I); 16 counts of encouraging and inducing aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii); and one count of conspiracy to allow, procure, and permit aliens to enter the United States, in violation of 8 U.S.C. § 1327.  

Mr. Rolle moved to dismiss the indictment, arguing that it failed to state a crime because his conduct occurred outside the United States.  The Court disagreed, and, as a matter of first impression, held that §§ 1324(a)(1)(A)(iv), (1)(A)(v)(I), and 2(B)(ii), apply extraterritorially.  Its holding is in line with the holdings of the  1st, 5th, 9th, and D.C. Circuits.   

In so holding, the Court affirmed the continued vitality of United States v. Bowman, 260 U.S. 94 (1922), which held the presumption against extraterritoriality does not apply “to criminal statutes which are, as a class, not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated . . . .”  The Court reasoned that § 1324(a)'s scope  and usefulness would be greatly limited if the statute were restricted to the territorial United States.  That is, given the nature of illegal immigration, much of the conduct under the statute is likely to occur beyond, at, or near our borders, and as a result, strongly suggests that Congress intended the statute to apply to extraterritorial conduct.

The Court also noted that its holding comported with international law because the protective principle supported the United States' exercise of jurisdiction.  

    

Burnette: Affirming Bribery-Based Convictions

In United States v. Burnette, No. 21-13990 (Apr. 11, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed Mr. Burnette's bribery-based convictions. 

Mr. Burnette, a real estate developer in Tallahassee, was accused of soliciting bribes from two undercover agents posing as property developers in order to sway a Tallahassee city commissioner's vote.  He was found guilty of Hobbs Act extortion, in violation of 18 U.S.C. § 1951(a); honest-services mail fraud, in violation of 18 U.S.C. §§ 1341, 1346; using a facility of interstate commerce to facilitate unlawful activity, in violation of 18 U.S.C. § 1952(a)(3); and making a material false statement to the FBI, in violation of 18 U.S.C. § 1001(a)(2).  

On appeal, Mr. Burnette's main challenge  turned on the Supreme Court's interpretation of the definition of "bribery"--as found in 18 U.S.C. § 201--in McDonnell v. United States, 579 U.S. 550 (2016).  In McDonnell, the Supreme Court narrowed the meaning of the term "official act," and clarified that in order to implicate the bribery statute's prohibition, a public official must either engage or agree to engage in (1) a sufficiently serious act--such as casting a vote (2) concerning a sufficiently serious and concrete matter.  

His challenge was, however, denied on the reasoning that some errors were invited, and others unpreserved, and Mr. Burnette could not meet the showing required for plain error--that the error affected his substantial rights.   

Mr. Burnette's other challenges--sufficiency of the evidence and evidentiary challenges--were also denied.  

The panel filed a separate concurrence to opine further on McDonnell and stress the importance of not "overread[ing]" the Supreme Court's opinion there.  The Court stressed that as an "inferior court," it and its sister courts "would do well to tread lightly and await further direction from [their] bosses before concluding that McDonnell revolutionized bribery laws as we have long known it."    

Dawson: Affirming Convictions for Sexual Exploitation of a Minor

In United States v. Dawson, No. 21-11425 (Apr. 5, 2023) (Wilson, Branch, Lagoa), the Court affirmed Mr. Dawson's convictions.  

The Court considered, as an issue of first impression, whether an adult who films himself exposing his genitals and masturbating in the presence of a child where the child is the object of the sexual desire in the film "uses" that child to engage in sexually explicit conduct for purposes of 18 U.S.C. § 2251(a), and held that such conduct fits squarely within the language of the statute. 

On appeal, Mr. Dawson argued that he did not violate § 2251(a) because the videos underlying his convictions depicted an adult engaging in solo, adult-only, sexually explicit conduct near a fully clothed minor who was neither the focal point of the images, depicted as a sexual object, nor otherwise involved in the sexual act.  He argued that his conduct did not constitute "uses" as that term is defined.  The Court disagreed, agreeing instead with the government's reading of § 2251(a)--that it covered passive use of a child in sexually explicit conduct.  That is, under § 2251(a), a minor must be involved in the offender's sexually explicit conduct, but need not necessarily be actively engaging in his or her own sexually explicit conduct.  

The Court noted, contrary to the Seventh Circuit in Howard, that its interpretation of "uses" in § 2251(a) did not pose a slippery slope problem because the statute ultimately requires fact-specific determinations.  As such, its passive interpretation of the term "uses" did not make the statute too broad.        

The Court also declined Mr. Dawson's invitation to rule in his favor by applying the rule of lenity because the Court found that the traditional tools of statutory interpretation provided sufficient clarity on the meaning of § 2251(a).  In so finding, the Court acknowledged that its application of the rule of lenity conflicted with those of the Third, Seventh, and Eighth Circuits.  Of note, the Court declined to hold--as the government argued--that Mr. Dawson's rule of lenity argument should have been reviewed for plain error because he failed to raise it below.  Instead, the Court clarified that a party cannot waive lenity--parties cannot waive the application of the correct law or stipulate to an incorrect legal test.   

Hall: Vacating Sentence and Remanding

In United States v. Hall, No. 22-10230 (Apr. 5, 2023) (Branch, Brasher, Ed Carnes), the Court held, as a matter of first impression, that a district court may not sentence a defendant to home confinement for violating the terms of his supervised release where the district court has also sentenced the defendant to the statutory maximum period of imprisonment for that violation.  The Court vacated Mr. Hall's sentence to the extent it imposed a term of home confinement and remanded for resentencing.  

Mr. Hall, a class C felon, violated the conditions of his supervised release.  After revoking his supervised release, the district court sentenced Mr. Hall to the statutory maximum two years' imprisonment and added one year of home confinement with location monitoring.  

The Court held that such a sentence is inconsistent with the limitation that a district court may impose home confinement "only as an alternative to incarceration."  As such, the district court lacked the authority to impose an additional year of home confinement on top of the statutory maximum sentence of incarceration.  In so holding, the Court joined the Fifth Circuit in United States v. Ferguson, 369 F.3d 847 (5th Cir. 2004), which reasoned that a court cannot impose the maximum term of incarceration under 18 U.S.C. § 3583(e)(3) and also impose a period of home confinement under (e)(4).       

Penn: Affirming ACCA Sentence Based on Florida Cocaine Sale Convictions

In United States v. Penn, No. 21-12420 (Mar. 24, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed the defendant’s ACCA sentence based on prior Florida sale-of-cocaine convictions.

In holding that the prior convictions were ACCA “serious drug offenses,” the Court rejected three arguments. First, circuit precedent foreclosed the defendant’s argument that a serious drug offense have a mens rea element requiring the defendant know the illicit nature of the substance, which Fla. Stat. 893.13 lacks.  Second, and in a question of first impression resulting in an extended discussion, the Court held that, although the least culpable conduct prohibited by 893.13 was “attempted transfer,” that conduct was covered by the word “distribution” in the ACCA definition and so was not overbroad. Third, applying Wooden, the Court held that the two prior convictions occurred on separate occasions because they occurred 30 days apart, and the Court rejected under plain error the defendant’s Apprendi argument, which was raised for the first time on appeal, because there was no precedent directly resolving the issue.

Batmasian: No Ancillary Jurisdiction Over Pardoned Defendant's Motion to Expunge Conviction

In United States v. Batmasian, No. 21-12800 (Mar. 24, 2023) (Branch, Luck, Antoon), the Court held that the district court lacked jurisdiction to consider the pardoned defendant’s motion to expunge his conviction.

The defendant filed his expungement motion in the district court that convicted him. But the Eleventh Circuit rejected the defendant’s reliance on the doctrine of ancillary jurisdiction. No court had ever expressly embraced such jurisdiction for a constitutional expungement request. And the Court declined to do so because the alleged constitutional violation—a purported denial of his First Amendment right to donate to charities—was the natural result of an otherwise valid arrest or conviction.

Files: Section 404 Does not Permit Sentence Reduction for Non-Covered Offenses, Admits Lengthy Discussion about Holding/Dicta

In United States v. Files, No. 21-12859 (Mar. 24, 2023) (Newsom, Luck, Tjoflat), the Court affirmed the denial of the defendant’s motion for a reduced sentence under Section 404 of the First Step Act.

The question in the case was whether the district court had authority to reduce the defendant’s sentence for a non-covered offense in addition to a covered offense. In Denson, the Court had previously stated that district courts could reduce a sentence only for a covered offense.  Here, the Court concluded that this statement in Denson was part of the holding of the case. And, it concluded, the Supreme Court’s decision in Concepcion did not abrogate that holding. The Court engaged in a lengthy discussion (which Judge Luck did not join) about when a statement is “necessary” to the result and thus forms part of the holding rather than dicta.

Judge Newsom, joined by Judge Tjoflat, concurred to explain why he believed it is a bad idea for appellate courts to issue alternative holdings.