Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, March 05, 2024

Dubois: "Controlled Substance Offense" Under the Sentencing Guidelines Refers to Substances Regulated by State Law at the Time of the State Conviction, Not the Time of Federal Sentencing

In United States v. Dubois, No. 22-10829 (Mar. 5, 2024) (William Pryor, Rosenbaum, Abudu), the Court affirmed Mr. Dubois’s convictions and sentence for attempting to smuggle firearms out of the United States, delivering firearms to a common carrier for shipment without written notice, and possessing a firearm as a felon.

The Court denied Mr. Dubois’s motion to stay pending the Supreme Court’s decisions in United States v. Rahimi, No. 22-915, and Jackson v. United States, No. 22-6640. It then rejected each of Mr. Dubois’s five claims:

First, the Court held that its precedent foreclosed argument that the federal felon-in-possession statute violates the Second Amendment. It otherwise refused to accept that New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022), abrogated that precedent without “clearer instruction from the Supreme Court” -- particularly given that Bruen makes clear that its holding is in keeping with District of Columbia v. Heller, 554 U.S. 570 (2008), and the Bruen majority mentioned neither felons nor the felon-in-possession statute.

Second, and contrary to Mr. Dubois’s sufficiency-of-evidence argument, the Court held that the record contained ample circumstantial proof that Mr. Dubois knew his shipment contained firearms.

Third, the Court rejected argument that Mr. Dubois’s prior marijuana conviction in Georgia could not establish a “controlled substance offense” under U.S.S.G. § 2K2.1(a)(4)(A). In reaching this decision, the Court joined circuits that have held that, for prior state convictions, “controlled substance” refers to drugs on the state’s drug schedules, rather than those regulated by federal law. It then adopted the rule of the Third, Sixth, and Eighth Circuits that “controlled substance” also refers to a substance that was regulated by state law at the time the defendant was convicted of the state drug offense, not the time of federal sentencing. This is so, the Court reasoned, because the guideline’s phrase “subsequent to” supports a backward-looking approach. Additionally, the Supreme Court’s reasons for adopting a time-of-state-conviction approach when it interpreted ACCA’s similar provision, see McNeil v. United States, 563 U.S. 816 (2011), compel the same approach under the guideline.

Fourth, the Court held that its precedent also foreclosed argument that Mr. Dubois’s stolen-gun sentence enhancement, without proof of knowledge that the gun was stolen, violated the Fifth Amendment.

Fifth, applying the plain-error standard, the Court held that undisputed record evidence supported the district court’s determination that Mr. Dubois could pay his $25,000 fine.

Judge Rosenbaum, with Judge Abudu joining, concurred. This concurrence separately expressed, among other things, why the Supreme Court’s impending decisions in Jackson and Brown v. United States, No. 22-6389, are unlikely to affect Mr. Dubois’s § 2K2.1(a)(4)(A) claim. The concurrence emphasized that Mr. Dubois’s case arose under the Sentencing Guidelines, while Jackson and Brown arose under ACCA. This “makes all the difference,” it explained, because ACCA defines “controlled substance” by express reference to the federal Controlled Substances Act, or “CSA,” and therefore directs that a “controlled substance” is what the CSA says it is, no matter how state law defines it. Neither Congress nor the federal Sentencing Commission can amend the CSA or, by extension, ACCA. And the guideline’s lack of statutory cross-reference makes Mr. Dubois’s case and McNeil indistinguishable.

Tuesday, February 27, 2024

Kent: Affirming Admission at Trial as Non-Hearsay a LEO's Statement Recounting Witness Statements that Implicated Defendant

In United States v. Kent, No. 22-13068 (Feb. 26, 2024 (Wilson, Jill Pryor, Brasher), the Court affirmed Mr. Kent's conviction. 

Mr. Kent was charged with RICO conspiracy and five substantive crimes, including an attempted murder.  The government alleged that the gang Mr. Kent was allegedly a member of murdered a former gang member--Rhodes--for cooperating with the police's investigation into the attempted murder of another individual--Muhammad. Specifically, the government’s theory was that Mr. Kent and other alleged gang members believed that Rhodes told the police that Mr. Kent had attempted to murder Muhammad and, then, murdered Rhodes for that reason.  To support this theory, the government introduced an investigator’s testimony from a preliminary hearing in a related case, which identified Rhodes as cooperating with law enforcement to implicate Mr. Kent in the attempted murder of Muhammad.  By offering the testimony, the government sought to establish that other gang members present at the hearing learned of Rhodes’s apparent cooperation and murdered him because of it, i.e., the government offered the out-of-court statements for the effect they had on the listener.    

Mr. Kent challenged the admission of the above testimony, arguing it was hearsay and admitted in violation of the Confrontation Clause.  The Court disagreed, finding the testimony admissible as nonhearsay, offered for the effect it had on the listeners and not for the truth of the matter asserted.  The Court further found the testimony relevant for a non-hearsay purpose, and found that the district court took sufficient steps to ensure that the jury did not consider the out-of-court statements as substantive evidence of guilt.   

Rudolph: Holding that § 2255 Motions are Vehicles for Attacking Sentences, Not Convictions

In Rudolph v. United States, No. 21-12828 (Feb. 12, 2024) (Wilson, Grant, Brasher), the Court found Mr. Rudolph's attempts to collaterally attack his sentences barred by his plea agreement.  

In order to avoid the death penalty for setting off a series of bombs (some during the Olympics in Atlanta), Mr. Rudolph pleaded guilty to six federal arson charges and four counts of use of a destructive device during and in relation to a crime of violence.  As part of his plea deal, he waived his right to appeal his conviction and sentence, as well as his right to collaterally attack his sentence in any post-conviction proceeding, including under 18 U.S.C. § 2255.  His waiver specifically stated: "In consideration of the Government’s recommended disposition, the defendant voluntarily and expressly waives, to the maximum extent permitted by federal law, the right to appeal his conviction and sentence in this case, and the right to collaterally attack his sentence in any post-conviction proceeding, including motions brought under 28 U.S.C. § 2255 or 18 U.S.C. § 3771, on any ground."

Post-Davis, however, Mr. Rudolph filed a § 2255 motion to vacate his § 924(c) convictions and sentences because his arson offenses no longer qualified as crimes of violence.  The district court denied the motion, finding it barred by the plea agreement because "it is not possible to collaterally attack only a conviction under 28 U.S.C. § 2255, which provides an avenue to attack the defendant’s sentence."

On appeal, this Court agreed with the district court, holding that § 2255 is a vehicle for attacking sentences, not convictions, and therefore finding Mr. Rudolph's motion barred by his plea agreement.  The Court noted: "Section 2255 fundamentally remains a procedure for prisoners to challenge their sentences. That is no less true when the method of attack is to show that a conviction was illegal. Even then, a motion under § 2255 is a collateral attack on the proceeding or process of detention."  

The Court also refused to adopt a miscarriage-of-justice exception to the general rule that appeal waivers are enforceable, splitting from the First and Eighth Circuits.  And even so, the Court noted that Mr. Rudolph was not "actually innocent" of the § 924(c) convictions because actual innocence means factual innocence--that is, it is more likely than not that no reasonable juror would have convicted him. 

Finally, the Court obliquely hinted that there may be other mechanisms by which Mr. Rudolph could collaterally challenge his convictions--such as maybe remedies available at common law--but failed to specifically delineate what those mechanisms were.              

Sanfilippo: Dismissing Appeal Raising Potentially Viable SOL Defense as Waived by Guilty Plea

In United States v. Sanfilippo, No. 22-11175 (Feb. 8, 2024) (Jordan, Lagoa, Marcus), the Court dismissed Mr. Sanfilippo's appeal.

Mr. Sanfilippo appealed his conviction for wire fraud pursuant to a guilty plea.  He argued that the district court erred in denying his motion to dismiss the indictment against him because it was issued after the expiration of the federal statute of limitations under 18 U.S.C. § 3282.  More specifically, he argued that the district court misinterpreted § 3282(a), and thus incorrectly concluded that the government indicted him within the statute of limitations by filing an information.  His argument specifically relied on a case that was pending before this Court at the time of his plea--United States v. B.G.G.  At the change of plea hearing, the government noted that if it turned out that the government was in error by filing an information within the statute of limitations, Mr. Sanfilippo "would be exonerated at that point, just as a matter of fundamental fairness." The government further noted that what it would do was "allow [Sanfilippo] to withdraw his guilty plea, and then [the government] would have to dismiss the charges, because the statute of limitations had run.  Sanfilippo would be able to file a motion to dismiss based on the statute of limitations again, in which case it would be granted at that point."  

The Court held, however, that it could not resolve the statute of limitations issue raised because Mr. Sanfilippo entered an unconditional guilty plea and, therefore, waived his ability to appeal the district court's denial of his motion to dismiss the indictment. The Court reiterated that a defendant’s unconditional plea of guilty, made knowingly, voluntarily, and with the benefit of competent counsel, waives all non-jurisdictional defects in that defendant’s court proceedings.  As such, if Mr. Sanfilippo wished to preserve appellate review of the district court's denial of his motion to dismiss the indictment while pleading guilty, he should have entered into a conditional plea in accordance with Fed. R. Crim. P. 11(a)(2).  The government's statements at the change of plea hearing were insufficient to demonstrate its (and the court's) direct assent to a conditional plea.   

Judge Jordan concurred in full, but wrote separately to alert the parties that their agreement to allow Mr. Sanfilippo to withdraw his guilty plea if the Court ultimately rules against the government on the statute of limitations issue— something the district court seemed to countenance—will require traversing some tricky jurisdictional terrain.  This is so because a district court has limited jurisdiction to set aside or modify a defendant's conviction or sentence, and it does not possess inherent authority to take such action.  Judge Jordan expressed confusion over how it is that the parties believed that they would be able, months or years from now, to go back to the district court and request that Mr. Sanfilippo be allowed to withdraw his guilty plea in a closed case.  He noted the possibility of Mr. Sanfilippo seeking collateral relief, which has its own limitations period.        

Daniels: Affirming Hobbs Act Robbery Convictions and Sentence, With One Judge Noting Pattern Instruction on Identification Needs Updating

In United States v. Daniels, No. 22-10408 (Jan. 24, 2024) (Jordan, Lagoa, Marcus), the Court affirmed Mr. Daniels's convictions and sentence. 

Mr. Daniels was convicted of ten counts of Hobbs Act robbery and sentenced to 180 months' imprisonment.  

On appeal, he first argued that the district court erred by rejecting his proposed jury instruction on eyewitness identifications, taken from the Third Circuit's model instructions.  The Court disagreed, finding that the instructions given substantially covered Mr. Daniels's proposed instruction on eyewitness identifications.   

He next argued that cumulative evidentiary errors prejudiced his right to a fair trial.  Applying plain error review to the claims of evidentiary error, the Court disagreed.

He also argued that the jury lacked sufficient evidence to convict him under Count 7 of the superseding indictment.  First, he argued that no reasonable jury could find beyond a reasonable doubt that the robber in Count 7 threatened the victim with force or violence—a necessary condition for Hobbs Act robbery. Second, he argued that no reasonable jury could find, beyond a reasonable doubt, that he committed the robbery alleged in Count 7.  The Court rejected both arguments.   

Finally, he argued that his sentence was substantively unreasonable because the district court accounted for Mr. Daniels's Count 7 conviction.  The Court found this argument failed because it rested only on the assumption that there was insufficient evidence to convict him for the robbery alleged in Count 7.

Judge Jordan concurred in full, but wrote separately to urge the Eleventh Circuit Committee on Pattern Jury Instructions to revise the pattern instruction on identification to allow juries to consider, in appropriate cases, that the witness and the person identified are of different races.  He noted that the Eleventh Circuit's pattern instruction on identification has not been substantively updated since 1985, almost 40 years ago.  In his view, it is time for the Court to take account of the abundant literature on cross-racial identification and revise its instruction on eyewitness identification to permit juries to consider, in appropriate cases, that the witness and the person identified were of different races.       

Monday, January 29, 2024

Pugh: Finding 18 U.S.C. § 231(a)(3) Facially Constitutional

In United States v. Pugh, No. 21-13136 (Jan. 18, 2024) (Lagoa, Brasher, Boulee (N.D. Ga.)), the Court affirmed Ms. Pugh's conviction.  

The Court addressed an issue of first impression regarding the constitutionality of 18 U.S.C. § 231(a)(3), which prohibits impeding law enforcement officers during a civil disorder affecting interstate commerce.  It was alleged that during a protest in Mobile, Alabama, Ms. Pugh shattered the window of a police car that was blocking protestors from walking on the interstate.  Ms. Pugh moved to dismiss the indictment, arguing that § 231(a)(3) is facially unconstitutional because it: (1) exceeds Congress’s power to legislate under the Commerce Clause, (2) is a substantially overbroad regulation of speech and expressive conduct, activities protected by the First Amendment, (3) is a content-based restriction of expressive activities in violation of the First Amendment, and (4) fails to provide fair notice and encourages arbitrary and discriminatory enforcement, in violation of the Fifth Amendment’s Due Process Clause. 

With regard to Ms. Pugh's first argument--that § 231(a)(3) is unconstitutional because it exceeds Congress's power under the Commerce Clause--the Court disagreed because the statute's jurisdictional element--the requirement that the civil disorder “in any way or degree obstruct[], delay[], or adversely affect[] commerce”--is enough to limit the statute’s scope to constitutional applications.  If a criminal statute contains a jurisdictional element that limits the statute to constitutional applications, that jurisdictional element immunizes the statute from a facial constitutional attack.  Ms. Pugh had argued that the criminal act committed was too removed from any connection to commerce, but the Court, while acknowledging that argument to be a strong one, found that the jurisdictional element of interstate commerce need not link directly to the criminalized act itself as long as the object of the criminal act is sufficiently connected to interstate commerce.     

With regard to Ms. Pugh's second argument--that §231(a)(3) violates the First Amendment because it broadly prohibits protected speech and expressive conduct--the Court held that the statute does not affect must speech at all.  That is, although “interfere,” by itself, could include speech, it is best read in § 231(a)(3) alongside “obstruct” and “impede” as prohibiting someone from hindering a law enforcement officer or fireman with more than mere words.  Here, it was merely hypothetical that § 231(a)(3) could be enforced against speech.  And the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.  The Court note that it need not decide today whether the statute might prohibit certain kinds of expressive activities that have the effect of blocking police officers from quieting a riot—such as directing others to riot.   

With regard to Ms. Pugh's third argument--that the statute on its face is a content-based restriction of activities protected by the First Amendment--the Court held that § 231(a)(3) is not a content-based regulation of speech.  If it affects speech at all, § 231(a)(3) is content-neutral.  Because it applies to “any act to obstruct, impede, or interfere with any fireman or law enforcement officer” performing official duties “incident to and during the commission of a civil disorder” affecting commerce or a federally protected function, it does not draw distinctions based on the message conveyed by the relevant act.  

Finally, with regard to Ms. Pugh's fourth argument--that § 231(a)(3) violates the Fifth Amendment’s Due Process Clause because it is vague on its face--the Court disagreed.  Here, because Ms. Pugh allegedly engaged in conduct clearly proscribed by the statute, she cannot complain of the vagueness of the law as applied to the conduct of others.     

Wednesday, January 17, 2024

Gatlin: Reversing Witness Tampering Conviction

In United States v. Gatlin, No. 20-14149 (Jan. 5, 2024) (Jordan, Luck, Lagoa), the Court reversed Mr. Gatlin's conviction and sentence as to witness tampering, but affirmed his sex trafficking of a minor and production of child pornography convictions and sentences, as well as the restitution order.  

Mr. Gatlin appealed his convictions and sentences for sex trafficking of a minor (Count 1), production of child pornography (Count 2), and witness tampering (Count 3).    

On appeal, Mr. Gatlin argued first that the evidence was insufficient as to all counts.  The Court disagreed with regard to Count 1, finding the evidence sufficient.  With regard to Count 2--production of child pornography--the Court disagreed with Mr. Gatlin's argument that § 2251 requires a specific intent to produce child pornography and that child pornography produced incidentally to a sexual encounter is insufficient.  The Court held that specific intent does not require that the defendant be single-minded in his purpose--it was enough for the government to show that making explicit photographs was a purpose for engaging in sexual activity with the victim.  With regard to Count 3--witness tampering--the Court agreed with Mr. Gatlin that the evidence was insufficient as to intent because he asked the victim to lie only to his public defender, not a federal officer.  The Court concluded that the evidence presented by the government established only a remote, outlandish, or simply hypothetical possibility that the victim's recantation statements would reach federal officers.  As such, no rational trier of fact could have found the federal nexus element to be met.  

Mr. Gatlin next argued that the court's direction to the jury to continue deliberating after returning a verdict as to Count 1 was improper.  With regard to Count 1, the court instructed the jurors that to find Mr. Gatlin guilty of sex trafficking, they had to find that he either acted (1) by means of force, threats of force, or coercion; or (2) in reckless disregard of the fact that the victim was a minor.  The jury received a general verdict form a well as an interrogatory verdict form, which first asked if Mr. Gatlin was guilty and, if so, whether it was by use of force or by reckless disregard for the fact that the victim was a minor.  The jury selected "guilty," but did not find either of the conditions necessary to trigger liability.  As a result, defense counsel asked the district court to direct a verdict of not guilty as to Count 1, which the court declined.  Instead, reasoning that the jury had returned an inconsistent verdict and the verdict had not been discharged, the district court clarified the instructions for the jury and directed them to continue deliberating.  After further deliberations, the jury found Mr. Gatlin guilty under the second condition.

The Court disagreed with Mr. Gatlin's arguments.  First, the Court held that the district court's actions did not run afoul of the Supreme Court's precedent on inconsistent verdicts in United States v. Powell, finding that the issue here was distinct because the inconsistency existed as to just one count (not between counts).  Instead, the Court analogized to a situation addressed by then-Judge Gorsuch in United States v. Shippley, noting that directing the jury to continue deliberations under these circumstances was not error.  Here, the district court had not accepted the jury's verdict and, as a result, the verdict was not final.  Additionally, asking the court to enter a directed verdict of not guilty would have required the court to overlook the jury's unanimous finding of guilt as to Count 1 on the general verdict form.  And the inverse--simply accepting the jury's general finding of guilt--was equally untenable.  It was metaphysically impossible to give effect to the jury's verdict.  The Court noted in a footnote, however, that it was not faced with a situation where the district court accepted an internally inconsistent verdict, which, according to the Court's sister circuits, would have triggered jeopardy and required a judgment of acquittal. 

Second, the Court found that the district court's decision was not plainly erroneous under the 5th (due process and double jeopardy) and 6th Amendments (right to a fair trial).  The Court found no plain error relating to double jeopardy because the verdict was not final.  The Court also found no plain error in the district court's giving of further instruction to the jury, finding them not to be impermissibly coercive.

Finally, the Court affirmed Mr. Gatlin's sentence.  Mr. Gatlin first challenged the custody, care, or supervisory control enhancement.  The Court found the enhancement appropriate, finding “custody, care, or supervisory control" to be plain, i.e., the plain meaning of stating that a child is in a person’s care is simply to say the person is responsible for looking after the child’s wellbeing.  Here, Mr. Gatlin occupied a guardian-like position over the victim.  Mr. Gatlin next challenged the repeat-offender enhancement.  The Court disagreed.  Third, the Court found Mr. Gatlin's life sentence to be reasonable.  Fourth, the Court upheld the restitution order, finding that it did not violate Mr. Gatlin's 6th Amendment rights.  

Judge Jordan concurred in part and dissented in part.  With regard to the inconsistent jury verdict issue, Judge Jordan emphasized that due to the district court’s non-acceptance of the inconsistent jury verdict on Count 1 the Court was not faced with a situation where a final jury verdict contains answers to special interrogatories that preclude a general finding of guilt.  Had the district court accepted the jury’s inconsistent verdict, he does not think Mr. Gatlin’s conviction on Count 1 could stand.

With regard to the production count, Judge Jordan dissented, believing the evidence to be insufficient to support a guilty verdict.  In his view, the evidence showed only that Mr. Gatlin took a single "live" photo during sexual intercourse with the victim, not that he had sexual intercourse with her for the purpose of producing child pornography.  He expressed a concern that in so affirming the conviction here, the Court was coming close to making § 2251(a) a strict liability statute.       

Judge Luck also concurred in part and dissented in part.  He would have affirmed Mr. Gatlin's witness tampering conviction, finding the evidence sufficient.           

Friday, December 29, 2023

Fey: Affirming Convictions for Drug Distribution and Killing a Witness

In United States v. Fey, No. 22-11373 (Dec. 28, 2023) (William Pryor, Rosenbaum, Abudu), the Court affirmed the defendants’ convictions for distributing meth and for conspiring to and actually killing a cooperating witness by administering a lethal amount of meth and fentanyl.

First, the Court found no reversible Rule 404(b) error. At trial, the government introduced testimony that, years after the murder, one of the defendants solicited someone to murder someone else who witnessed the murder. The Court held that this evidence was extrinsic (not intrinsic) and thus fell under Rule 404(b), as that conversation occurred years after the murder conspiracy was completed. And the Court held that the government failed to provide the requisite notice of this testimony before trial under Rule 404(b). However, the Court determined that this error was harmless because the government’s pretrial brief and jury instructions, filed months in advance of trial, put the defense on notice of this testimony. In addition, the evidence was supported by sufficient evidence and did not violate Rule 403 because, although testimony that Fey sought to have a witness killed was “not flattering,” it was not prejudicial than probative.

Second, the Court did not commit plain error by failing to instruct the jury on spoliation of evidence. The district court declined to instruct the jury that officers negligently allowed the victim’s tissue samples to be destroyed before they could be examined. The Court found it unnecessary to decide whether a spoliation instruction may ever be given in a criminal (as opposed to a civil) case because, even if it could, it was required only where the spoliation was based on bad faith, not mere negligence. And there was no binding precedent on this point, which was required to satisfy plain error.

Finally, at trial the defense objected to an officer’s testimony that another individual died from a drug overdose. The Court held that, even if eliciting that testimony was improper, it was harmless because there was no suggestion that the defendants played a role in the individual’s overdose death.

Wednesday, December 20, 2023

Hurtado: Affirming MDLEA Convictions Over Jurisdiction, Fourth Amendment, and Delay Challenges

In United States v. Hurtado, No. 21-12702 (Dec. 20, 2023) (Grant, Tjoflat, and Ed Carnes), the Court affirmed the defendants’ MDLEA convictions. Judge Tjoflat wrote the opinion for the Court, with the exception of one point, which the other two panel members rejected in a concurrence.

First, the Court held that there was jurisdiction over the vessel because Cameroon properly consented to U.S. jurisdiction, which was proven conclusively by the certificate of the Secretary of State. In addition, Cameroon subsequently waived jurisdiction after the indictment, which was not too late. And even though Cameroon had deleted the vessel from its registry by the time it consented, that would render the vessel stateless and subject to U.S. jurisdiction anyway.

Second, the Court upheld the denial of a motion to suppress. As an initial matter, there was the question whether the Fourth Amendment applies to a foreign national in international waters. Although the Supreme Court’s decision in Verdugo-Urquidez and the Eleventh Circuit’s decision in Cabezas-Montano held that it did not, Judge Tjoflat interpreted the Eleventh Circuit’s decision in Tinoco to hold that it did, and he believed that holding was binding. Judge Carnes and Grant disagreed with that interpretation of Tinoco. Nonetheless, the panel agreed that there was no Fourth Amendment violation anyway because there was reasonable suspicion to believe that the vessel was engaged in illegal activity. Reasonable suspicion is based on the totality of the circumstances and can exist even if each circumstance is independently innocuous.

Finally, the Court rejected an unnecessary delay argument under due process, as well as Rules 5 and 48. There was no due process violation because the defendant could not show that any delay was a deliberate act by the government to obtain a tactical advantage. And there was no violation of the Rules either because all of the factors but one cut against him, and the delay had nothing to do with extracting a confession. Finally, the Court found no outrageous government conduct. (“Acosta Hurtado has not found Sasquatch, or—more appropriately here—the Kraken.”).

Judge Carnes, joined by Judge Grant, concurred to explain that, contrary to Judge Tjoflat’s opinion, the Eleventh Circuit’s decision in Tinoco had not held that the Fourth Amendment applies to foreign nations outside the U.S., a holding that would be contrary to Supreme Court precedent. At best, it assumed without deciding that the Fourth Amendment applied, and so that assumption was dicta. Judge Carnes catalogued many of the Court’s cases distinguishing between holding and dicta. (“Our circuit law is rock-solid and clear as a mountain stream that the only statements in, or parts of, an opinion that are holdings are those that are necessary to the result of the decision that the opinion accompanies.”)

Sotis: Affirming Convictions and Sentence for Illegal Exporting Scuba Equipment to Libya

In United States v. Sotis, No. 22-10256 (Dec. 20, 2023) (William Pryor, Marcus, Mizelle (M.D. Fla.)), the Court affirmed the defendant’s convictions for illegally exporting scuba diving equipment to Libya.

First, the Court held that the evidence was sufficient that he acted willfully and that he acted in conspiracy with another person. The Court also held that, even if the evidence at trial varied from the facts alleged in the indictment about the type of equipment exported, there was no prejudice because he conceded at trial that the equipment required a license to export and no license was obtained.

Second, the Court rejected the argument that an expert witness and a lay witness invaded the province of the jury by opining on the ultimate issue. The expert’s testimony that the equipment required a license did not violate Rule 704(b) because it did not opine on the defendant’s mental statute, and the defendant conceded that point. The lay witness’s testimony that he had never seen a case with this level of willfulness was improper because it went to the defendant’s state of mind, but it did not affect the defendant’s substantial rights given the overwhelming evidence of willfulness.

Finally, the Court affirmed the 57-month sentence. The Court agreed with the defendant that the district incorrectly used U.S.S.G. 2M5.2(a)(1) rather than 2M5.1(a)(1) to calculate the offense level. However, that error was harmless because it resulted in an identical guideline range. And the Court rejected the defendant’s argument that his sentence was substantively unreasonable on the ground that it was disparate from other cases, as the defendants in those cases were not similarly situated (e.g., some pled guilty, received a longer sentence, or were sentenced under an older version of the Guidelines).

Thursday, December 14, 2023

McCoy: Affirming Section 404 Denial Based on Pre-Apprendi Drug-Quantity Findings

In United States v. McCoy, No. 21-13838 (Dec. 14, 2023) (Jordan, Newsom, Grimberg (N.D. Ala.)), the Court affirmed the denial of a motion for a reduced sentence under Section 404 of the First Step Act.

The Court re-affirmed its prior precedent holding that a defendant is bound by pre-Apprendi, judge-made drug-quantity findings for purposes of Section 404. The Court further rejected the defendant’s argument that this precedent violated due process on the theory that, at the time of his sentencing, he had no notice that he needed to object to the drug-quantity finding beyond 50 grams of crack. The Court explained that due process did not require defendants to receive notice about hypothetical, future ameliorative legislation that is then unknown.

Judge Grimberg concurred, sympathizing with the defendant’s due process argument and wondering if defendants must now preserve arguments based on future legislation.