Evans: Victim's fax part of "lulling" of fraud perpetrator

In U.S. v. Evans, No. 05-10624 (Dec. 26, 2006), the Court held that the jury was entitled to find that a fax from a fraud victim to the perpetrator of a fraud was"lulling" activity for purposes of satisfying the wire fraud statute, 18 U.S.C. § 1343.
The Court noted that a communication from a victim can qualify as "lulling." The Court otherwise rejected Evans’ arguments that the fax should not be considered lulling. The Court noted that the fraud scheme – getting a purchaser to continue to send goods to a seller who was, in reality, insolvent – had not yet reached "fruition" since the "lulling" activity was still going on, as the seller failed to alert the buyer of its true financial position. Further, here, Evans responded to the victim’s fax, thereby continuing the lulling, and delaying the discovery of his fraud by authorities. Further, the indictment need not have alleged that Evans intended from the inception of his fraud to engage in lulling activity.

Thompson: 851 notice for 1st trial valid for 2nd trial

In U.S. v. Thompson, No. 05-15052 (Dec. 27, 2006), the Court affirmed the defendant’s convictions for drug and weapons possession, and the life sentence imposed pursuant to 21 U.S.C. § 841 for a defendant with three prior drug felony convictions.
The Court rejected the defendant’s challenge to the sufficiency of the evidence. Even though the defendant was not in the apartment in which drugs and guns were found, his papers, including a print out of telephone numbers from his cell phone, were found there.
The Court also rejected the argument that the government did not timely serve him with notice of its intent to seek a sentence enhancement based on prior convictions, as required by 21 U.S.C. § 851(a)(1). The Court noted that Thompson had been served with the notice, in timely fashion, prior to his first trial on the same charges – which ended in a mistrial. This made it unnecessary for the government to refile the notice prior to Thompson’s second trial on these charges. Further, as to certain charges that were newly added to Thompson’s indictment for his second trial, the initial § 851 notice also sufficed. The Court found that this notice gave Thompson adequate notice to challenge the prior convictions, should he have wished to do so, and made him aware of the potential downside of a conviction at trial.

Bohannon: Affirming intent to photograph enhancement

In U.S. v. Bohannon, No. 05-16492 (Dec. 26, 2006), the Court affirmed a 120-month sentence imposed on a defendant convicted of using the internet to entice a minor into sexual activity.
The Court rejected the defendant’s challenge to the facts supporting the enhancement, under USSG § 2G2.1, based on Bohannon’s intention to produce a visual depiction of sexually explicit conduct with a minor. The Court noted that a digital camera was found in the vehicle Bohannon drove to meet with the police officer posing as a 15-year old, and that a search of Bohannon’s home uncovered photographs of minors in various stages of undress. This evidence, the Court found, supported the enhancement.
The Court rejected a reasonableness challenge to the 120-month sentence, noting that the district court’s discussion of the § 3553(a) factors showed it had considered these factors, and that this sentence was below the low-end guideline range of 135 months.

Kinard: Anhydrous Ammonia enhancement vacated

In U.S. v. Kinard, No. 06-10043 (Dec. 20, 2006), the Court (Anderson, Barkett, Goldberg. b.d.) reversed a sentence enhancement for defendants convicted manufacture of amphetamine. The enhancement was based on the defendants’ discharge of anhydrous ammonia. However, the applicable Guideline provided for an enhancement only where one of four specified federal environmental statutes were violated. Here, no violation of any of these statutes was established by the government. Accordinly, the Court vacated the enhancement.

Compas-Diaz: Fast-Track Creates No Equal Protection Violation

In U.S. v. Campos-Diaz, No. 05-16082 (Dec. 19, 2006), the Court joined all other Circuits to have considered the issue and held that no equal protection violation occurs when a defendant charged with illegal re-entry into the United States is not given the opportunity to qualify for a lower sentence based on the Attorney General’s "fast-track" disposition program. "The fast-track program is rationally related to the legitimate government interest of conserving prosecutorial and judicial resources and easing congestion in judicial districts with a high volume of immigration cases."

Kennard: Bilking Church of $ Conviction Affirmed

In U.S. v. Kennard, No. 05-12742 (Dec. 15, 2006), the Court affirmed the convictions of two brothers for bilking hundreds of churches and other non-profit organizations out of millions of dollars.
The Court rejected the argument that it was error to admit evidence of – and instruct the jury about -- one defendant’s post-indictment flight. The Court noted that this evidence was relevant because it made the defendant look guilty.
The Court also rejected the argument that it was error to exclude the exculpatory testimony of the defendants’ attorney, taken during an SEC investigation of the case. The Court noted that prior deposition testimony can only be introduced if a witness is unavailable (a condition that was satisfied here) and if the party against whom the testimony was offered had a "similar opportunity" to develop the testimony in the prior proceeding. Here, the defendants’ failed to meet their burden of showing that the SEC lawyers who took the lawyer’s deposition had a sufficient similarity of motives to that of the prosecutors in the brothers’ criminal case.
The Court also rejected a sufficiency of the evidence challenge to a money laundering conspiracy conviction, as well as a claim of a variance between the conspiracy charged and the conspiracy proved at trial.
The Court also rejected a challenge to a deliberate ignorance jury instruction, noting that such error is harmless where, as here, the jury could have convicted based on a defendant’s actual knowledge of the criminality.
The Court further rejected a challenge to a sentence, noting that since the actual 38-month sentence was within the Guideline range, no "substantial rights" were violated, and no "plain error" therefore occurred.

Chandler: No Ineffective Failure to Seek Venue Change

In Chandler v. McDonough, No. 06-11190 (Dec. 18, 2006), the Court rejected a death-row inmate’s claim that his trial counsel rendered ineffective assistance by failing to move for a change of venue. Noting that its en banc decision in U.S. v. Campa, 459 F.3d 1121 (11th Cir. 2006) had created a high burden on a party seeking to establish presumed prejudice based on a failure to change venue, the Court stated that it was now difficult to establish the requisite "prejudice" for ineffective assistance in failing to seek a change of venue. The Court also upheld the denial of an evidentiary hearing on the ineffectiveness issue, noting that the written expert report regarding the venue was part of the record, and that the defendant had failed to proffer the evidence he would present at a hearing.

Bennett: Prior Burglary Convictions Qualify for 924(e)

In U.S. v. Bennett, No. 05-15376 (Dec. 13, 2006), the Court (Black, Hull, Conway b.d.), rejected the defendant’s argument that he was erroneously classified as an armed career criminal.
The Court pointed out that when Bennett pled to guilty to the offense of possession of a firearm by a convicted felon, he admitted to having three prior felony burglary convictions, as charged in the indictment. Further, Bennett never objected to the factual allegations in the PSI, which described his prior offenses as burglaries. The Court held that Bennett waived the argument, by failing to raise it earlier, that the probation officer should not have looked to materials outside specific court documents when assessing his prior criminal convictions.
The Court, however, reversed the offense level portion of the sentence. The Court noted that based on the district court’s finding that the possession of the firearm was not connected with a violent felony, the sentence offense level should have been one level lower. Since this would have resulted in a lower sentence guideline range, and since the sentencing court said it wanted to impose a sentence near the low end of the applicable guideline range, the error was "plain." The Court therefore vacated the sentence.

Cedeno: "loss" amount does not include both repair and fair market value

In U.S. v. Cedeno, No. 05-16616 (Dec. 6, 2006) (Black, Carnes, Barkett), the Court held that the sentencing court erred in its "loss" calculation, and reversed the sentence.
The defendants made off with $1,485,000 worth of watches. The store got the watches back after the police recovered them. The store spent $13,939 repairing the damage some of the watches suffered during the smash-and-grab job. The issue was whether, to calculate the "loss" amount, the cost of the repair should have been added to the value of the watches before any damage. The district did add these two, resulting in a loss amount in excess of $1.5 million, that is, in excess of the original fair value of the watches.
The Court noted that the district court used the wrong guideline in calculating the loss. Further, the correct guideline capped the "loss" amount at fair market value, which, by definition, could not exceed the value of the watches before the smash-and-grab. The Court rejected the district court’s attempt to explain its calculation as being based on "the perspective of the victim." Here, the jewelry store recovered the watches, so the $1.5 million "loss" amount far exceeded its actual loss. The Court also noted that allowing a sentencing court to disregard the recovery of stolen goods would create a "backwards incentive." In any event, this approach made no sense, as it effectively doubled the value of the goods, once for being stolen, and again for being damages or destroyed.

Lorenzo: Post-sentencing rehabilitation cannot count under 3553(a)

In U.S. v. Lorenzo, No. 05-16119 (Dec. 8, 2006) (Pryor, Fay, Reavley), the Court, on a government appeal, reversed a sentence where the district court, on resentencing with the defendant released from prison, had resentenced the defendant to time served, despite a guideline range of 24-30 months (less time served), on the basis of the defendant’s post-release conduct, which showed his ability to maintain a job and be employed in the community.
Reversing, the Court held that § 3553(a)(1), which indicates that "the history and circumstances of the defendant" should be taken into account at sentencing, should not include post-initial sentencing history and characteristics. The Court reasoned that taking post-sentencing conduct into consideration would "inequitably benefit the few defendants with the opportunity for re-sentencing and create unwarranted sentence disparities." In addition, such consideration was at odds with the Policy Statements of the Sentencing Guidelines.

Barbour: No right to postconviction counsel

In Barbour v. Haley, No. 06-10920 (Dec. 8, 2006), the Court rejected a claim under 42 U.S.C. § 1983 by indigent Alabama death-sentenced inmates that they had a constitutional right to state-appointed counsel or some form of lesser form of state-provided legal assistance in state post-conviction proceedings.
Relying on Murray v. Giarratano, 492 U.S. 1 (1989) (plurality opinion), the Court held that death-sentenced inmates had no right to counsel in postconviction proceedings. The Court also held that because the inmates failed to specify the lesser form of legal assistance which they claimed to be entitled to, this aspect of the claim also failed.

Lynd: No habeas relief for lack of mental health expert

In Lynd v. Terry, No. 06-11374 (Nov. 28, 2006), the Court denied habeas relief to a Georgia inmate sentenced to death for a 1988 murder.
The Court rejected the claim that Lynd was deprived of his right to the assistance of competent experts in violation of Ake v. Oklahoma, 470 U.S. 68 (1985). The Court found that much of Lynd’s claim was procedurally barred because he failed to raise it earlier, in state proceedings. Further, the Court held that the Georgia state courts did not deviate from federal precedent when they held that Lynd was not entitled to call a mental health expert to testify on his behalf when he refused to submit to an examination by an expert hired by the State of Georgia.
The Court also rejected the argument that counsel was ineffective in advising Lynd to refuse to submit to a state mental health examination, finding that it was Lynd himself who so decided. The Court also found that counsel adequately investigated Lynd’s background and mental health.
The Court further rejected the claim that counsel failed to investigate whether the victim would have not have regained consciousness after being shot in the head twice and placed in the trunk of a car, thereby obviating a kidnapping conviction. The Court found that this argument was developed and presented to the jury.
Finally, the Court rejected the argument that counsel’s representation, years earlier, of the victim’s mother’s ex-husband in a bankruptcy proceeding created a conflict-of-interest.

Ayers: Catchall Instruction ok for Death Sentence

In Ayers v. Belmontes, No. 05-493 (Nov. 13, 2006), the Supreme Court held that there was no reasonable likelihood that jurors in the penalty phase of a capital case interpreted the court’s "catchall" instruction, which directed the jurors to consider "[a]ny other circumstance which extenuates the gravity of the crime" to preclude consideration of the petitioner’s evidence that he would lead a constructive life if incarcerated. The Court held that in light of the arguments of both defense counsel and the prosecution during the penalty phase regarding the petitioner’s potential for improvement, it was implausible that the jury would have understood the instruction to preclude its consideration of rehabilitation evidence. Consequently, the instruction was consistent with the constitutional right to present mitigating evidence in a capital proceeding.

Williams: 5-kilo conspiracy plus priors = mandatory life

In U.S. v. Williams, No. 06-10302 (Nov. 13, 2006), the Court affirmed the imposition of a mandatory life sentence for conspiracy to possess five or more kilos of cocaine, pursuant to 21 U.S.C. § 841(b)(1)(A)(ii).
The Court rejected Williams’ argument that his five-kilo conspiracy conviction could not be treated as having occurred after two or more prior felony convictions became final, because the five-kilo transaction occurred before the one of his prior convictions became final. The Court pointed out that conspiracy is a continuing crime, and that here the conspiracy to distribute cocaine, of which the five-kilo transaction was but one object, continued after the prior drug conviction became final. Hence, it was correct to count this prior conviction against Williams for purposes of imposing a mandatory life punishment.
Reviewing Williams’ second challenge to his sentence for plain error, the Court rejected the argument that the prior conviction should not have been counted as "final" because the time for appealing this conviction extended to a date less than two months before Williams’ arrest for the instant offense. The Court noted that the focus is not on the passage of time, but on the degree of continued criminal activity. Here, Williams’ attempt to obtain two kilograms of cocaine, though prevented by the actions of law enforcement, occurred after the prior conviction became final, and was a sufficient degree of criminal activity to justify triggering a life imprisonment.

Chavers: Judgment, Not Mandate, Starts AEDPA period

In Chavers v. Sec. Dep’t of Corrections, No. 05-15163 (Oct. 31, 2006), the Court affirmed the denial of habeas relief to a Florida inmate whose petition it found to be time-barred under AEDPA’s one-year limitations period.
The Court rejected the argument that the one-year statute of limitations begins to run 90 days after a mandate issues from the final decision of a Florida appellate court on direct review of a conviction. [Note: Unlike Lawrence v. Florida, presently pending in the U.S. Supreme Court, which involves the AEDPA statute of limitations after collateral review in the State courts, Chavers’ case involves the limitations period after direct review in the State courts]. Instead, the 90-day period begins to run after the entry of judgment by a Florida appellate court. This latter date is the date on which the 90-day period commences for filing a certiorari petition in the United States Supreme Court. Accordingly, it is the date of the entry of the judgment, not the date of the issuance of the mandate, that commences the one-year statute of limitations. Using this latter date as the starting point, Chavers’ federal habeas petition was time-barred.

Alderman: "Lingering Doubt" Theory Not Deficient Performance

In Alderman v. Terry, No. 04-14595 (Oct. 30, 2006), the Court affirmed the denial of habeas relief to a Georgia death row inmate convicted of the 1974 murder of his wife.
The Court rejected Alderman’s argument that his counsel was ineffective in the penalty phase of his sentencing proceedings by failing to investigate and to present to the jury his social-history background.
The Court noted that counsel’s strategy was to rely on a "lingering doubt" as to culpability basis for avoiding a sentence of death. Further, counsel presented numerous character witnesses. The Court rejected Alderman’s argument that counsel misunderstood that the law would permit a further mitigating case based on life-history evidence. The Court pointed out that as a result of the character witnesses the jury heard about Alderman’s social-history background. Further, the over-arching "lingering-doubt" strategy was one that satisfied Alderman’s right to competent representation.
The Court further noted that Alderman did not suffer "prejudice" as a result of any deficiency in counsel’s representation.

Revolorio-Ramo: No Due Process Violation in Unintentional Destruction of Evidence

In U.S. v. Revolorios-Ramo, No. 03-14361 (Oct. 26, 2006), the Court rejected the argument that Due Process required the dismissal of an indictment for conspiracy to possess cocaine while on board a vessel, in violation of 46 U.S.C. app. § 1903, because the U.S. Navy destroyed, for unseaworthiness, the fishing vessel on which the defendants were apprehended off the coast of Guatemala, thereby destroying the exculpatory evidence that the vessel was merely a fishing vessel, and that the defendants did not intend to be involved in drug trafficking.
The Court noted that some evidence of hooks and bait aboard the vessel was presented at trial. Therefore, the question was whether this equipment was of genuine fishing quality. The potentially excuplatory evidence aboard the vessel would merely have bolstered the defendants’ defense. Further, the defendants had an opportunity to cross-examine the law enforcement officers about the nature of the fishing equipment.
In addition, the law enforcement agent did attempt to preserve evidence, though his photographs did a "singularly poor job." But his bad photos were not taken in bad faith. Thus, there was no evidence of "official animus." "In short, the government clearly attempted, albeit unsuccessfully and perhaps incompetently, to document the contents of a vessel deemed unseaworthy by the Coast Guard prior to destroying her." No Due Process violation occurred.

Sweet: Habeas Petition is Untimely

In Sweet v. Secretary, Dept’ of Corrections, No. 05-15199 (Oct. 23, 2006), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1990 murder.
The Court found that the federal habeas petition was untimely because Sweet’s most recent state post-conviction filing was itself untimely under state rules and therefore not "properly filed," and therefore did not toll the time period for filing for federal habeas relief. Citing Pace v.DiGuglielmo, 544 U.S. 408 (2005), the Court noted that a filing which has been held untimely by a state court is not properly filed within the meaning of the AEDPA’s time computation provisions.
The Court rejected Sweet’s equal protection argument. Sweet pointed out that even though the Supreme Court of Florida had denied him relief, it had addressed on the merits the claims of identically-situated inmates, untimeliness notwithstanding. Finding that Sweet failed to allege "invidious" discrimination, the Court rejected this claim.
The Court also rejected the argument that the State waived its untimeliness argument by failing to raise it in their initial response. The Court pointed out that the State raised untimeliness in a summary judgment motion filed 36 days after its response. Citing Day v. McDonough, 126 S.Ct. 1675 (2006), the Court reasoned that since a Magistrate Judge could sua sponte point out to the State the untimeliness of a habeas petition, it was necessarily unproblematic for the State to raise the objection on its own, 36 days after its initial response.

Grossman: No habeas relief for Florida death row inmate

In Grossman v. McDonough, No. 05-11150 (Oct. 16, 2006), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1984 murder.
The Court rejected Grossman’s habeas challenge based on the admission of a co-conspirator’s inculpatory confession. Though recognizing, as did the Florida courts, that the evidence should not have been admitted under Bruton and its progeny, the Court held that the error was harmless in light of the overwhelming evidence of guilt.
The Court also rejected Grossman’s Brady claim. The Court found that even if there had been improper withholding of evidence by the prosecution, no Brady violation occurred because there was no possibility that the outcome of the proceeding would have been different.
Finally, the Court rejected the argument that defense counsel was ineffective at the penalty phase. The Court found that the many "post-hoc" affidavits of potential witnesses did not demonstrate deficient performance. Even if performance was ineffective, prejudice did not result. The Court also found no "golden rule" violation by the prosecutor, finding that the prosecutor merely described the circumstances of the victim’s death – circumstances which were "plainly relevant to whether the murder was henious, atrocious, or cruel."

Osborne: Habeas Denied: Counsel Not Ineffective

In Osborne v. Terry, No. 04-16751 (Oct. 16, 2006), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for two 1990 murders.
The Court rejected claims that trial counsel was ineffective during the guilt phase for failing to put on exculpatory evidence regarding the manner in which the victims were killed. The Court noted that since the defendant confessed to the killings, much of the evidence regarding the killings would have been irrelevant, or not of sufficient significance to alter the outcome of the trial.
The Court also rejected claims that counsel was ineffective during the penalty phase. The Court noted that counsle was not ineffective for failing to put on evidence of Osborne’s use of drugs, when Osborne himself had denied any drug use to his attorney.
The Court also affirmed the state trial court finding that there was no evidence to support Osborne’s claim that his attorney failed convey to him a plea of life, on account of the attorney’s racial animosity toward Osborne. The Court affirmed the finding that the offer was conveyed, and declined by Osborne. Further, the claim was procedurally barred.

Matthews: Florida 3rd-Degree Burglary is "Violent Felony"

In U.S. v. Matthews, No. 05-13447 (Oct. 12, 2006), the Court resolved a question it recently left open in U.S. v. Day, 2006 WL 2739348, * 4 n. 4 (11th Cir. Sept. 27, 2006): whether a third-degree burglary under Florida law qualifies as a violent felony under the Armed Career Criminal Act because the offense involves "conduct that presents a serious potential risk of physical injury to another."
The Court held that third-degree Florida burglary does qualify as a violent felony, even though this offense can merely involve an intrusion upon the curtilage of a structure. The Court noted that Florida defined the term curtilage narrowly, to include only an enclosed area surrounding a structure. "Regardless of whether a burglar breaches the roofed portion of a structure, his unlicensed entry into the enclosed area surrounding that structure may bring him into close physical proximity with the same persons he might encounter were he to enter the structure." Just an attempt to commit burglary can qualify as a "violent felony," a Florida third-degree burglary can also so qualify.

Bradberry: Gang Affiliation Not Unduly Prejudicial

In U.S. v. Bradberry, No. 06-11757 (Oct. 11, 2006), the Court affirmed the conviction and sentence of a defendant convicted of possession of a firearm in a school zone, in violation of 18 U.S.C. § 922(q)(2)(A).
The Court rejected the argument that the admission of evidence of Bradberry’s gang affiliation was unduly prejudicial. The Court noted that evidence that the defendant and others were part of the same gang made the government’s theory of the case "more likely." The balancing of the prejudicial impact of the testimony against its probative value presented a close question. The district court’s decision thereforre fell within the ambit of harmless error.
The Court also rejected Bradberry’s challenge to the obstruction of justice enhancement. The Court noted that the enhancement was based on perjurious testiomny put on by Bradeberry’s witnesses. It was permissible to make Bradberry to suffer the consequences of suborned testimony he put on.http://www.ca11.uscourts.gov/opinions/ops/200611757.pdf

Hristov: Suitcase contents can be basis for sentence increase

In U.S. v. Hristov, No. 05-14122 (Oct. 4, 2006), the Court rejected the argument that a district court, for sentencing purposes, improperly relied on the quantity of drugs inside a suitcase, when the defendant claimed that he was given the suitcase not knowing what it contained.
The Court noted that the knowledge element of a violation of a criminal statute can be proved by demonstrating deliberate ignorance. Here, there was sufficient evidence of deliberate ignorance. Hristov was paid $5000 to transport a briefcase, in his own car, from Las Vegas NV to St. Petersburg FL. He received the briefcase from someone he had never previously met and delivered it to someone from whom he would later purchase cocaine. He admitted that transporting the briefcase made him nervous, and that cocaine could have been in the briefcase.
The Court also rejected the argument that the time frame of his conduct fell outside the period of the indictment. The Court noted that an open-ended start date can be alleged in an indictment, as was done here. Moreover, the defendant never objected at sentencing to the time period outlined in the PSR.

Eckhard: Upholding Obscene Phone calls conviction

In U.S. v. Eckhardt, No. 95-12211 (Oct. 4, 2006), the Court affirmed convictions of violating the Communications Decency Act, 47 U.S.C. § 223.
The Court rejected the argument that § 223(a)(1)(C)’s prohibition on "annoying, abusive, harassing, or threatening" telephone calls infringed the First Amendment and was unconstitutionally vague. Here, the "overarching purpose" of Eckhard 200 "sexually laced" calls in one year to a victim was "to harass and to frighten." This type of speech is not constitutionally protected. The statute was not too vague because "citizens need not guess what terms such as ‘harass’ and ‘intimidate’ mean."
The Court also rejected a sufficiency challenge to the convictions for violating § 223(a)(1)(A), which criminalizes "obscene" use of a telecommunications device. The Court concluded that Eckhardt’s phone calls were obscene. His "scant comments about union activity were incidental inclusions in his attempt to annoy and harass."
The Court rejected a Rule 404(b) challenge to the admission of phone calls made 10 years earlier than, and three years after, the charged phone calls. The Court noted that recordings of these calls were admissible to prove the identity of the caller (which Eckhard contested). Further, proof of a prior conviction of similar conduct was admissible to "show a criminal purpose."
The Court also rejected a challenge to improper comments during the prosecutor’s closing, finding them to limited to demonstrate a trial replete with errors. Moreover, the weight of the evidence would have led to a conviction regardless of the prosecutor’s statements.
The Court further rejected a challenge to the jury instruction which added the words "lewd, lascivious, filthy or indecent" to the definition of obscenity. Though recognizing that the words were not in the statute, and that Eckhardt correctly asked that they be removed from the jury instruction, the Court found that the words did not impair Eckhard’s chosen defense, which was that he did not make the alleged phone calls. The Court also rejected a challenge to the jury instruction based on their failure to charge proof of specific intent. The Court noted that Eckhardt had not challenged the instruction at trial. Further, the hundreds of obscene phone calls would allow any reasonable juror to find an intent to harass.
Turning to sentencing, the Court upheld the district court’s reliance on uncharged phone calls, which occurred 10 years earlier than the charged offenses, as a basis for enhancing the sentence. Noting the failure of counsel to object at sentencing, and the lack of precedent interpreting the Guidelines in this specific context, the Court held that any error would not be "plain."

Smith: Habeas untimely where no GA St. Ct review sought

In Pugh v. Smith, No. 05-12100 (Sept. 29, 2006), the Court held that a habeas petition was untimely. After a first direct appeal of his Georgia conviction, the defendant did not seek review of his Georgia conviction in the Georgia Supreme Court. Consequently, the "conclusion of direct review" – that is, the date on which the one-year period for filing a habeas petition began to run – occurred not at the conclusion of the 90-day period for filing a certiorari petition with the United States Supreme Court. Rather, since no U.S. Supreme Court review was available to Smith (because he never sought review in the Georgia Supreme Court), the period began to run 10 days after the adverse ruling of the Georgia Court of Appeals, that is, on the date after which he could no longer seek review of his conviction in the Georgia Supreme Court.
The Court also found no basis for "equitable tolling."

Machado: Untimely Request for Return of Forfeited Property

In U.S. v. Machado, No. 05-11420 (Oct. 2, 2006), the Court rejected a defendant’s appeal of a forfeiture order.
The defendant claimed that the district court lacked subject matter jurisdiction when it entered the forfeiture order, because it entered the order nearly one year after entering the judgment of conviction, in violation of Fed. R. Crim. P. 32(d)(2), which requires forfeiture orders to be "included" in the judgment. Dismissing this appeal, the Court pointed out it lacked jurisdiction to consider the issue, because the appeal was filed outside the time limits of Fed. R. App. P. 4.
The Court also rejected Machado’s appeal of the denial of his Fed. R. Crim. P. 41(g) motion for the return of property. Noting that a district court has equitable jurisdiction over an untimely 41(g) motion, the Court found that since Machado was seeking return of the fruits of his crime, it would have been inequitable to grant him relief. Further, the claim was time-barred, because it was brought more than six years, outside the time limit for suits against the government set forth at 28 U.S.C. § 2401(a).
Finally, the Court rejected Machado’s reliance on the All Writs Act, 28 U.S.C. § 1651(a). This law empowers courts to fashion remedies in extraordinary cases. But: "This is not an extraordinary case that merits use of extraordinary authority."

Day: No ACCA conviction where defendant did not plead guilty to the charged burglary

In U.S. v. Day, No. 05-15676 (Sept. 27, 2006), the Court held that the district court should not have relied on a prior Florida third-degree burglary conviction as a basis for sentencing the defendant as an armed career criminal, and vacated the sentence.
Three prior "violent felonies" qualify a defendant for sentencing as an armed career criminal. 18 U.S.C. § 924(e)(1). One of Day’s prior convictions arose out of a case where he was charged in Florida State court with second-degree burglary, but pled guilty only to a lesser offense, third-degree burglary, which could not have involved a dwelling and not have qualified as a violent felony. The guilty plea to third-degree burglary contained insufficient information to determine whether Day was convicted of burglarizing a structure or a conveyance. The district court relied on the charging document, which charged second-degree felony.
Reversing, the Court recognized that charging documents are among the materials a court can ordinarily look to in determining whether a prior offense is the type of burglary that qualifies as a violent felony. Here, however, reliance on the charging document was improper, because the defendant pled guilty to a different offense than the one with which he was charged.

Davis: No habeas relief on Giglio/Brady

In Davis v. Terry, No. 04-13371 (Sept. 26, 2006), the Court affirmed the denial of habeas relief to a Georgia death row inmate.
The Court noted that it was reaching the merits of Davis’ challenges to the fairness of his trial, even though he procedurally defaulted these issues by failing to raise them on direct appeal of his state sentence, because Davis accompanied these arguments with a claim of actual innocence.
The Court rejected the Giglio claim that the prosecution presented knowingly false testimony. The Court noted that there was no evidence the State knew the evidence was false when it presented it.
The Court also rejected a Brady claim that the State failed to disclose exculpatory material during trial. The Court noted that the exculpatory evidence was revealed during the trial, and that defense counsel declined to recall a witness to the stand to go over this evidence. Thus, the defense was aware of the evidence, and the failure initially to advise the defense of the evidence was not material because the defense elected not to recall the witness.
Finally, the Court rejected an ineffective assistance of counsel claim, pointing out that the defense presented a viable defense of mistaken identity. Moreover, none of the testimony which Davis asserted should have been elicited would have changed the outcome of the trial.

Arevalo-Juarez: Fast-Track Disparity Not Unwarranted

In U.S. v. Arevalo-Suarez, No. 05-16313 (Sept. 15, 2006), the Court, on a government sentencing appeal, reversed the district court’s grant of a four-level sentence reduction based on the sentencing disparity resulting from the unavailability of a fast-track sentencing departure in the Southern District of Georgia. The fast-track program makes defendants who plea guilty early eligible for a sentence reduction, but only in districts designated by the Attorney General.
Citing U.S. v. Anaya-Castro, 455 F.3d 1249 (11th Cir. 2006), which held that a district court was not required to depart based on the disparity caused by the fast-track program, and citing caselaw in other circuits, the Court held that the fast-track program disparity was not "unwarranted" because it was adopted pursuant to Congressional authorization. Hence, the district court erred in relying on the disparity as a basis for its sentence reduction under 18 U.S.C. § 3553(a).

Owens: No error in higher sentence than co-conspirators

In U.S. v. Owens, No. 06-11448 (Sept. 15, 2006), the Court rejected the argument that a sentence was unreasonable because the district court failed to consider the sentences given to other defendants in the case.
The Court noted that the district court had stated that it thought the sentence was reasonable and it had consulted the 18 U.S.C. § 3553(a) factors. The district court acknowledged that Owens’s sentence was longer than some of others arising out of the same fraudulent scheme, but specifically found that other § 3553(a) factors outweighed this problem. The Court found the sentence reasonable, noting that Owens’s cooperation, while "admirable," did not "undo the harm he had caused."

Wilks: Roper does not affect treatment of youthful offenses

In U.S. v. Wilks, No. 05-14262 (Sept. 13, 2006), the Court affirmed a 212-month sentence imposed on a defendant convicted of drug-trafficking.
The Court rejected the argument that reliance on youthful offenders convictions to qualify for enhanced sentences under the career offender guideline and the Armed Career Criminal Act violated Roper v. Simmons, 543 U.S. 551 (2005), which held that the Eighth Amendment prohibits the execution of individuals who were under 18 at the time the offense was committed.
The Court noted that its precedent since Roper had affirmed reliance on youthful offenders convictions. Further, Roper "does not deal specifically – or even tangentially – with sentence enhancement."
The Court also rejected the argument that several youthful offender convictions should have deemed "related" because Wilks was sentenced for them on the same day in State court. The Court noted that offenses are considered separate and not related if there is an intervening arrest. Here, there was an intervening arrest, and the fact that Wilks’ State sentencing for multiple offenses occurred at the same time did not alter the analysis.
Finally, the Court rejected the challenge to the sentence as "unreasonable," pointing out that the sentence was fifty months shorter than the low-end of the Guideline range.

Pham: Evidence Independent of Cooperation Proper for Sentence Enhancement

In U.S. v. Pham, No. 06-10880 (Sept. 11, 2006), the Court affirmed the sentence imposed on a defendant convicted of conspiracy to distribute ecstasy, and of money laundering.
The defendant claimed that the sentencing court erred in relying on evidence of drug quantity derived from information he provided after entering his plea agreement and cooperating with the government, in violation of USSG § 1B1.8. The Court, reviewing the issue for clear error, found that the evidence on which the sentencing court relied had been obtained independent of the defendant’s cooperation. Consequently, the evidence was properly relied on.
The Court also rejected the argument that the sentence should not have been enhanced based on a co-conspirator’s use of a firearm. The Court noted that the use of a firearm was reasonably foreseeable, both based on the evidence, and on the nature of the large-scale drug enterprise.

Soreide: Wife Can't Avoid Criminal Forfeiture of Husband's Property

In U.S. v. Soreide, No. 05-12559 (Aug. 24, 2006), the Court affirmed a grant of summary judgment to the government in a an ancillary action, brought by the wife of a criminal defendant, challenging orders of criminal forfeiture in her husband’s property.
21 U.S.C. § 853(n) allows a third-party to assert an interest in property subject to a preliminary order of forfeiture. The statute establishes a 30-day deadline, and provides two grounds for recovery: (1) a showing of a "superior" interest in the property to the interest of the defendant, and (2) being a bona fide purchaser of the property.
None of the wife’s claims were sustainable under § 853(n). Her claim of a "superior" interest was untimely.
She was not a "bona fide purchaser" within the meaning of the statute, because this provision protest only subsequent purchasers of the defendant’s interest in the property. Here, the wife claimed that she purchased property with the defendant.
Finally, the wife could not succeed on her claim that she was not given adequate notice of forfeiture as to one piece of property. The fact that she mentioned this property in her first petition for relief showed that she had actual notice of its forfeiture.

Henyard: Confession Voluntary in Habeas

In Henyard v. McDonough, No. 05-15110 (Aug. 11, 2006), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for 1993 murders..
The Court rejected Henyard’s claim that his confession was involuntary. The Court noted that inquiries about how long interrogation would last did not constitute unequivocal invocations of the right to remain silent. Further, the police gave Henyard an opportunity to stop talking, and he waived his right to silence.
The Court also rejected Henyard’s change of venue claim. The Court found that the level of Lake County, Florida press coverage was not such as to presume prejudice.
The Court rejected the claim that counsel was ineffective at the penalty phase for not bringing up, inter alia Henyard’s neglectful childhood. The Court found that the evidence in support of such claims was not strong enough to have affected the outcome. Nor did the evidence overcome the "gruesome" nature of his murders.

Valle: No habeas relief for ineffective "model prisoner" argument

In Valle v. Sec. for Dep’t of Corrections, No. 05-15724 (Aug. 11, 2006), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1978 murder of a Coral Gables police officer.
Valle claimed that counsel was ineffective because he presented evidence that Valle had been a "model" prisoner, which opened the door for the State to show that he twice tried to escape from prison. The Court found that Valle failed to meet the "prejudice" prong of an ineffectiveness claim.
The Court also rejected Valle’s Batson claim, noting that the prosecutor’s reasons for dismissing black jurors were race neutral, that two black jurors served on the jury, and that Valle himself was not black.
The Court also rejected the claim that his confession was obtained in violation of his Miranda rights, agreeing with the state courts that Valle had not unequivocally invoked his right to remain silent when he told police that he had an attorney who had advised him not to speak to anybody.
Finally, the Court agreed with the Florida Supreme Court that Valle could not prevail on his claim that petit and grand juries in Miami-Dade underrepresented Latin Americans in the relevant time period, because Latin Americans encompass people from too many different backgrounds to constitute a cognizable class for equal protection analysis.

Hallford: Brady violation not prejudicial

In Hallford v. Culliver, No. 05-12621 (Aug. 11, 2006), the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for a 1986 murder.
Hallford claimed that a Brady violation occurred when the State failed to disclose a plea agreement with the victim’s daughter, who was the lead witness against him. The Court recognized that such evidence can be material, but here its withholding was not sufficiently prejudicial to the defendant, in light of the other overwhelming evidence against him.
The Court also rejected an ineffective assistance of counsel claim. The Court found that it was not ineffective for counsel to open the door to evidence that the defendant had committed incest with his daughter who testified against him, as attacks on the daughter’s credibility were a logical part of the guilty phase of the case.

Campa: Cuban Spies Tried in Fair Venue

In U.S. v. Campa, No. 01-17176 (Aug. 9, 2006) (en banc), the Court, reversing the prior panel decision, held that the district court did not abuse its discretion in denying a change of venue in the "Cuban spy trial," and remanded the case to the panel for adjudication of the other issues raised on appeal by the defendants.
Noting the "extremely heavy" burden of defendants who seek to establish presumed pretrial publicity, the Court found that the newspaper articles were too remote in time to show that the trial was "utterly corrupted by press coverage." Further, the Court agreed with the district court that a voter survey was too ambiguous to be reliable. In addition, the Court found that the voir dire was a "model" for a high-profile case, which rebutted any claim of prejudice. During the trial, the trial court "fiercely guarded the jury from outside intrusions."
The Court also rejected the defendant’s reliance, as the basis for a motion for a new trial, on the government’s own arguments in an employment case, in which the government argued that the Elian Gonzalez case had so inflamed views in Miami-Dade as to make a fair trial impossible there. The Court found that the doctrine of judicial estoppel did not undermine the government’s different positions in the two cases.

Smith: Commerce Clause Power over Child Pornography

In U.S. v.Smith, No. 03-13639 (Aug. 11, 2006), the Court, on remand from the Supreme Court, affirmed the defendant’s convictions for producing and possessing child pornography.
In its prior decision in this case, the Court, applying the "plain error" standard of review, had held the statutes of conviction unconstitutional as applied to Smith, because the interstate nexus, namely, the use of photography materials produced interstate, was insufficient to justify the exercise of Congress’ Commerce Clause power. On remand from the Supreme Court, the Court noted the subsequent change in law effected by Gonzalez v. Raich, 545 U.S. 1 (2005), recognized in its own decision in U.S. v. Maxwell, which upheld the federal regulation of the wholly intrastate cultivation and sale of marihuana, reasoning that Congress can regulate purely local activities which are part of an economic class of activities that have a substantial effect on interstate commerce. The Court held that its prior plain error holding was no longer valid in light of Maxwell and Raich.
Turning to other issues, the Court rejected Smith’s claim of insufficiency of the evidence. The Court also rejected the argument that the "knowingly" element of the offense applied to the jurisdictional nexus, that is, to the interstate travel of the materials comprising the child pornography. The Court noted that there was no risk of penalizing innocent conduct by not requiring mens rea as to the interstate nexus, noting that there is no such thing as innocent intrastate possession of child pornography.
The Court rejected the Fourth Amendment challenge to the search of Smith’s home, finding that the "plain view" doctrine applied. Here, the police, searching for drugs, opened a lockbox which contained photos. It was "very obvious" that the females were minors. This created probable cause to believe a crime had been committed – regardless of whether police had beliefs as to the "technical" elements of the offense, such as whether Smith had "produced" the photos.
The Court also rejected Smith’s challenge to the out-of-court photo identification by one the victims. The Court noted that the police did not instruct the victim to identify the defendant, and that her identification of Smith was spontaneous.
The Court further rejected Smith’s challenge to the introduction in evidence of photo of him naked, and of naked photos of adult women. In the context of the trial, the photos made it Smith’s defense less probable, and were therefore admissible.
Further, applying the "plain error" standard of review, the Court rejected a number of Smith’s challenges to the evidence admitted, to the jury instructions, and to the lack of notice regarding the sentencing guidelines sentence.

Hunt: No Presumption in favor Guidelines post Booker

In U.S. v. Hunt, No. 05-11671 (Aug. 10, 2006), the Court held that, post-Booker, a district court "may determine, on a case-by-case basis, the weight to give the Guidelines, so long as that determination is made with reference to the remaining section 3553(a) factors that the court must also consider in calculating the defendant’s sentence." The Court held that there should be no "presumption" in favor of a Guidelines sentence.
The Court acknowledged that the district court when sentencing a defendant under the Guidelines (which reflect a 100:1 crack/powder differential) "made some statements that could be interpreted as presumptions in favor the Guidelines." However, the district court also stated that it believed the Guidelines were worthy of deference "in that particular case." Consequently, the setnence was reasonable.

Hightower: Defaulted Batson Violation

In Hightower v. Terry, No. 00-15807 (Aug. 8, 2006) (2-1) (Wilson, J. dissented), the Court denied habeas relief to a death row inmate convicted of 1987 murders.
Althought the case was remanded to the Court by the Supreme Court for reconsideration in light of Miller El, the Court found Miller El inapposite.
The Court noted that, when the case was in the Georgia state courts, Hightower did not raise a Batson challenge to jury selection when his conviction was on direct appeal to the Georgia Supreme Court. Consequently, Hightower could only prevail on a Batson challenge if he showed cause and prejudice respecting the failure to raise the issue in state court. The Court therefore found no reason to rule in Hightower’s behalf on the basis of Batson.

Woodard: Affirming Conviction for Conspiracy to Deprive City of Honest Services

In U.S. v. Woodard, No. 04-12056 (Aug. 8, 2006), the Court affirmed mail fraud convictions.
The indictment charged the defendant with a single conspiracy with two unlawful objects: using the mails to defraud a city and its citizens (1) of money, and (2) of one defendant’s honest services. The jury instruction, however, instructed the jury that it could convict the defendants if it found one, not necessarily both of the objects, though it had to agree unanimously on this object. Rejecting the argument that the instruction in the disjunctive was error, citing its precedent the Court noted that proof as to only one of the means to accomplish a conspiracy suffices.
The Court also rejected the argument that the Pinkerton jury instruction, which provides that a defendant may be convicted of substantive offense based on the conduct of co-conspirators, effectively removed the intent element from the substantive mail fraud counts. Rejecting this argument, and reviewing the issue for "plain error," the Court found that the indictment’s description of the substantive counts did not make the jury’s finding "plainly insufficient."
Again reviewing for plain error, the Court rejected the argument that the jury should have been instructed on multiple conspiracies. The Court found that the evidence established a single conspiracy.
Finally, the Court rejected a defendant’s argument that his misuse of his public office was not unlawful, finding that he used his official position for personal financial gain, and concealed these transactions. The Court also rejected the co-conspirator’s argument that, as someone not employed by the city, she could not have deprived it of her "honest services." Private citizens, acting in conjunction with public officials, can violate the law.
Turning to sentencing, the Court rejected challenges to the loss amount calculation and the restitution ordered. The Court found that "every dollar" a defendant took deprived the City of his honest services and therefore should count as loss amount. The Court also found no error in ordering restitution to the City, instead of the individual citizen-victims, noting that the City was responsible ultimately for reimbursing the victims.

Wade: Pre-indictment conduct not basis for acceptance denial

In U.S. v. Wade, No. 05-12518 (Aug. 4, 2006), the Court affirmed in part and reversed in part a sentence imposed on a defendant convicted of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g).
The Court rejected the defendant’s argument that a prior Georgia conviction for attempted burglary should not count as a "violent felony" for purposes of qualifying as an Armed Career Criminal under 18 U.S.C. § 924(e) and the Guidelines criminal history provisions. The Court pointed out that Wade conceded that his attempted burglary resulted from an attempt to kick in the door of a residence to commit a theft, conduct which creates a potential risk of physical injury sufficient to qualify as a "violent felony." The Court noted that it had reached a similar result in a prior case involving attempted burglary under Florida law.
The Court, however, agreed with the defendant that the district court erred when it denied him a two-level acceptance of responsibility sentence reduction, despite his timely guilty plea, because the defendant unlawfully possessed a firearm a few months after being arrested on state charges for the same unlawful possession offense, involving a different firearm. The Court noted that this conduct predated the indicment in the federal case. The relevant period for assessing acceptance of responsibility for a federal offense is post-federal indictment, not post-arrest on state charges. The Court noted the lost incentive to plead guilty if pre-indictment conduct could be a ground for denying the sentence reduction. The Court vacated the sentence, and remanded for resentencing, noting that the resentencing would take place under the new post-Booker regime.

Williams: No Ineffectiveness of Counsel

In Williams v. Allen, No. 05-12691 (Aug. 2, 2006), the Court affirmed the denial of habeas relief to a defendant sentenced to death for a 1988 murder.
The Court rejected the argument that Williams received ineffective assistance of counsel because counsel failed to review a file before trial. The Court found that no prejudice resulted from this, as the file would not have helped Williams sustain a relevancy objection to incriminating evidence.
The Court also rejected the argument that counsel was ineffective for failing to investigate mitigating evidence for use at sentencing. The pertinent information was in fact presented, and any deficiency did not undermine confidence in the outcome of the case.
Finally, the Court rejected the argument that counsel failed to investigate "reasonable doubt" as to whether Williams committed murder. The Court found that the theories of defense were adequately investigated, and any failure did not prejudice Williams.

Irizarry: Rule 32(h) Notice Not Required for Upward Variances

In U.S. v. Irizarry, No. 05-11718 (Aug. 1, 2006), the Court held that Fed. R. Crim. P. 32(h), which requires sentencing courts to give defendants advance notice of a possible imposition of an upward departure from the Guidelines range, does not apply to sentence enhancement imposed on the basis of 18 U.S.C. § 3553.
At sentencing, without advance notice, the court imposed a six-month variance above the Guideline range. The defendant pled guilty to making a threatening interstate communication to his wife, in violation of 18 U.S.C. § 875(c), and the court imposed a higher sentence because it concluded that additional protection was warranted because the defendant remained determined to threaten his wife.
Joining three other Circuits on this point, the Court held that Rule 32(h) does not apply to post-Booker variances, because parties are on notice that a court can select a sentence between the statutory maximum and minimum.

Taylor: Pond not within home's curtilage

In U.S. v. Taylor, No. 05-10658 (July 28, 2006), the Court, rejecting the defendant’s argument that his property was searched in violation of the Fourth Amendment, affirmed a defendant’s conviction for being a felon in possession of a firearm.
After two 911 calls were placed to police from the same number, with the caller hanging up immediately, police were sent to the place from which the calls originated. The property, which belonged to Taylor, was a five acre lot. On the property were a home, a nearby barn, and a pond 60 yards from the home. When police arrived, they drove by the gate to the home, which was open and saw Taylor walking toward them from the barn. Based on Taylor’s answers, police suspected that a violent domestic argument had just occured, and they asked for Taylor’s consent to search the barn. Finding nothing in the barn, the police followed a trail of fresh footsteps to the pond, where they saw a bag, which contained a gun. The gun was the basis for the felon-in-possession prosecution.
Citing the "knock and talk" exception to the warrant requirement, the Court noted that the police did not violate the Fourth Amendment by entering Taylor’s property and coming up to his house.
The Court further found that, although Taylor only consented to a search of his barn, this did not preclude police from searching the nearb pond. The Court noted that a consent is not necessary if the area searched is not within the curtilage of the home. Here, the pond was sixty yards from the house and thus not within its curtilage. Further, no activity on the pond was part of the intimate activity of the home. No enclosure surrounded both the home and the pond. And no steps were taken to protect the pond from observation by outsiders. The pond was the equivalent of an "open field," which could be searched by police without violating the Fourth Amendment.

Williams: 100:1 Crack/Powder Disparity is Ok

In U.S. v. Williams, No. 05-13205 (July 21, 2006), on a government appeal, the Court reversed a district court’s sentence, finding that it improperly exercised its discretion under 18 U.S.C. § 3553(a) to reduce a defendant’s sentence based on the disproportionate crack vs powder cocaine rules, disagreement with the Guidelines career offender enhancements, and its belief that the government manipulated the sentence by arranging to purchase crack instead of powder cocaine in a sting operation.
The Court noted that the district court explained its lower sentence based the general 100-1 disparity between punishments for defendants convicted of crack cocaine trafficking compared to those convicted on powder cocaine charges. The Court found that in view of Congressional intent to maintain this disparity, and notwithstanding repeated criticisms of it by the sentencing commission, this was an impermissible sentencing consideration. "Federal courts are not at liberty to supplant this policy decision." The Court rejected reliance on § 3553(a)(6), finding that the disparity was not "unwarranted" because it was endorssed by Congress. Finally, the Court rejected the argument that the 100-1 ratio was Sentencing Commission, not Congressional, policy. Congress established the ratio, and rejected repeated Commission proposals to change it.
The Court noted that in cases where "individualized" factors might counsel against a Guideline sentence, the 100-1 ratio might not apply, but here the district court categorically rejected the 100-1 choice.
The Court also reversed the district court’s rejection of the "arbitrary compounding" effect of the career offender enhancement. The Court found that these Guidelines tracked Congress’ instruction to sentence repeat offenders "at or near" the statutory maximum.
Finally, the Court found no merit in the "sentencing manipulation" ground for a lesser sentence, finding it inapt in a case where the conviction was the result of a valid sting operation.
The Court found that none of the above errors were harmless, because the record demonstrated that the court relied on them when imposing sentence.

Faust: Acquitted Conduct Can be Punished by Judge

In U.S. v. Faust, No. 05-11329 (July 21, 2006), the Court reaffirmed that, post-Booker, it does not violate the Sixth Amendment for a sentencing judge to enhance a defendant’s sentence based on conduct for which he was acquitted by a jury.
Faust was convicted of a single count of possessing cocaine with intent to distribute, but acquitted of all three remaining counts of possession of ecstasy with intent to distribute, possession of a firearm as a convicted felon, and possession of a firearm in furtherance of a drug trafficking crime. At sentencing, however, the judge enhanced Faust’s sentence based on ecstasy quantities, and based on possession of a dangerous weapon.
The Court first rejected Faust’s challenge to the sufficiency of the evidence, finding sufficient connection between Faust and the apartment at which cocaine was found to support his conviction.
The Court also rejected Faust’s challenge to the acquitted conduct-based sentence enhancements, standing by its prior resolution of this issue in U.S. v. Duncan, 400 F.3d 1297 (11th Cir. 2005). [Barkett, J., concurred in this result, stating that she was bound by Circuit precedent, but noted that the precedent was incorrect, because factual findings by a judge ought to assess "contextual matters" such as the status of the victim, or the defendant’s role in the offense, not facts which constitute entirely free-standing offenses.]

Houston: Batson involves motives, not disparate impact

In U.S. v. Houston, No. 04-16524 (July 19, 2006), the Court rejected a Batson challenge to a conviction, but reversed the sentence on the basis of Booker error.
Pointing out that five out of the prosecution’s six peremptory strikes struck blacks from the venire, Houston claimed that improper race discrimination affected jury selection. The Court found no improper motive in the striking of one of the venirepersons for being asleep during voir dire. As to the four others, the Court accepted the prosecution’s explanation that all had a family member who had been convicted of a crime. The Court rejected Houston’s claim that blacks tend to have more family members convicted of crimes, holding that this "disparate impact" argument was not persuasive in the Batson context, which looks at motives. Further, other evidence – the race of the prosecutor (black), his being forthcoming and non-evasive supported a finding that his reasons were neutral, and not an invalid "sorting device" to hide discrimination.
The Court pointed out that the defense did not question the prosecutor’s reasons for keeping white jurors who also had family members with convictions. Hence, since the defendant bore the burden of proof, the Court had no basis for questioning the prosecutor’s credibility on this basis.
Turning to the sentence, the Court noted that the district court followed the Guideline instruction to impose the statutory maximum (in Houston’s case, 360 months) when the Guideline sentence exceeded the statutory maximum. The Court rejected the Government’s argument that the error was harmless, finding that the district court "very clearly" imposed a Guideline sentence. The Court reached the same conclusion regarding the sentence on a second count of conviction, for which the district court, again adhering to the Guidelines instruction, imposed a consecutive sentence at the mandatory minimum. The Court vacated the sentence and remanded for resentencing.

Griffith: Physical force means physical contact

In U.S. v. Griffith, No. 05-12448 (July 17, 2006), the Court held that a prior conviction for Georgia simple battery qualifies as a predicate offense for violating 18 U.S.C. § 922(g)(9), which makes it unlawful for a person convicted of a "misdemeanor crime of domestic violence" to possess a firearm.
The Georgia statute defines simple battery as "intentionally mak[ing] physical contact of an insulting or provoking nature with the person of another." The federal statute defines a misdemeanor crime of domestic violence as one which has as an element the use of physical force. Under a categorical approach which looked only to the elements of the Georgia statute, the Court found that "physical force" includes "physical contact." "A person cannot make physical contact – particularly of an insulting or provoking nature – with another without exerting some level of physical force." The Court sided with two other circuits to have considered the issue, and rejected the Ninth Circuit contrary interpretation of the statute, and the Seventh Circuit inconsistent resolution of the issue in a different context.
The Court rejected the argument that the domestic nature of the relationship in the predicate offense must be an element of the offense. The Court found that this was a fact in the offense, not an element.

Occhicone: Giglio error does not warrant habeas relief

In Occhicone v. Crosby, No. 05-12502 (July 14, 2006), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1986 murder.
Pointing out that a state informant falsely testified at trial that he did not have a deal with the prosecution with respect to receiving a lesser sentence for a grand theft charge, Occhicone claimed that the Florida courts applied the wrong standard when they rejected this claim. The Florida courts applied the Brady standard, which requires the defendant to prove a reasonable probability that the result would have been different had the evidence been disclosed. However, Giglio applied to the prosecution’s failure to correct perjured testimony, and it provides for reversal when there is a reasonable likelihood that the exculpatory evidence affected the judgment of the jury.
The Court noted that the standard of review did not matter in this case, because even under a defense-favorable standard, no habeas relief should issue. First, the jury was aware that the witness received a sentence of probation only on the recent charge, and had been told about the witness getting a reduced sentence in another criminal case. Further, the other evidence against Occhicone greatly reduced the significance of the untruthful testimony.

Ronda: Corrupt Police Officer Convictions Affirmed

In U.S. v. Ronda, No. 03-15640 (July 13, 2006), the Court (Tjoflat, Hull & Restani b.d.) affirmed the convictions and sentences of former Miami policemen involved in the fabrication of evidence to make police shootngs appear justified, by planting guns at the scenes of the shootings and/or making false statements to investigators.
Citing U.S. v. Veal, 153 F.3d 1233 (11th Cir. 1998), the Court rejected the argument that there was no federal nexus for their obstruction of justice convictions, because they lied to state, not federal, investigators. It suffices that it was "likely" that the misleading information would be transferred to a federal agent. Here, it was likely that such a federal investigation would occur. The Court distinguished Arthur Andersen v. U.S., 544 U.S. 696 (2005), as involving a different obstruction statute which referenced "an official proceeding," language not included in the statute defendants were charged with violating.
The Court rejected the argument that the jury should have been instructed about Florida’s fleeing felon statute, which authorizes police to shoot at fleeing felons in certain circumstances. The Court noted that the statute itself was introduced into evidence. Further, since the defendants still violated the law by obstructing investigations into the shootings, the justification for the shootings themselves under the fleeing felon statute had no legal impact on the elements of the obstruction offense.
The Court rejected the argument that there was no single over-arching conspiracy, finding "overwhelming" evidence to the contrary.
The Court rejected defendant Gonzalez’ argument that the evidence of perjury was insufficient. Contrary to Gonzalez’ claim that he had merely testified that he was uncertain about whether victims of police shootings had a gun, the transcript shows that Gonzalez said he believed they had a gun.
The Court affirmed the denial of a mistrial based on extrinsic evidence that one juror allegedly gave the jury during deliberations, based on watching tv reports of the trial. Further, though another juror’s home was burglarized during the trial, the trial court instructed the jury that this was in no way related to the trial. The trial court interviewed these jurors separately, and wisely chose to dismiss them.
Turning to the sentences, the Court found no Booker plain error, because the defendants did not show any comments by the district court that the sentences were too severe.

Hamaker: Bank Fraud Conviction Upheld

In U.S. v. Hamaker, No. 03-12554 (11th Cir. 2006), the Court affirmed bank fraud convictions, and, on a government cross-appeal, reversed the sentence based on the district court’s erroneous calculation of the "loss" amount. The bank fraud arose out of defendant’s billing a bank for construction work that they did on the personal property of the bank’s CEO.
The Court rejected the argument that the defendants were entitled to an "apparent authority" jury instruction, based on their claim that they relied on the authorization of the bank’s vice-president. The Court noted that a bank official is never authorized to empower a fraud on his institution. The instruction would therefore have been erroneous. The defendants were entitled to a "good faith defense" instruction, which was correctly given.
The Court also rejected the argument that a new trial should have been granted after the government produced new documents after the conviction. The Court concluded that the defendants showed no prejudice from the withheld documents. The Court also found no error in withholding disclosure that a government witness was an informant in an unrelated investigation.
The Court further rejected the argument that an FBI agent who testified regarding his compilation of data from documents should have been designated an expert witness. The Court noted that the witness did not give any opinions. Further even if he should been disclosed pre-trial as an expert, no prejudice occurred because he only testified about the contents of defendant’s own documents.
The Court rejected defendants’ challenge to the sufficiency of the evidence, noting the "mountain of evidence" of fraudulent billing.
Turning to the government’s cross-appeal of the sentence, the Court noted that the district court believed that the amount of loss imputable to the defendants’ for sentencing enhancement purposes should be limited to the $178,500 the jury stated should be forfeited, not the approximately $2 million the PSI found had been improperly obtained from the Bank. The Court held that the district court erred in three ways. First, the forfeiture amount was what the jury believed should be divested from the defendants as penalty, but did not measure the harm suffered by the victim bank. Second, the jury’s forfeiture verdict was not a special verdict and therefore did not purport to represent the jury’s estimate of the general losses. Third, the Sentencing Guidelines require judges to make "independent" findings at sentencing. The district court should not per se restrict its loss calculation to the jury’s forfeiture verdict.

Martinelli: Money-laundering instruction need no specify fraud elements

In U.S. v. Martinelli, No. 04-13977 (July 10, 2006) (Dubina, Marcus, Cox), the Court upheld the money-laundering conviction of a defendant, arising out of a scheme to defraud small businesses, by persuading them to pay a fee for finding a buyer of the business, when, in reality, no such service was provided.
The Court rejected Martinelli’s challenge to the search of the business premises. The Court noted that although the affidavit upon which a search warrant was granted did not list the specific names of the complainant small businesses police contacted, "those people and entities were neither anonymous nor confidential." Each victim had personal knowledge of the crime. Moreover, there was a "high level of corroboration," with each complainant reporting that they paid money for the same purpose and never received services. Thus, there was a "fair probability" that contraband would be found at the business locations and the warrants were supported by probable cause.
The Court also rejected the argument that the warrant was overbroad in permitting seizure of "all" company files, noting that such a broad seizure was warranted when there were allegations of a pervasive scheme to defraud.
Reviewing the issue for "plain error," the Court rejected the argument that the money laundering jury instructions were erroneous in failing to instruct regarding the elements of mail fraud. The Court noted that Martinelli was charged with money laundering, not mail fraud. The government did not have to prove the elements of mail fraud, only that Martinelli knew that the funds he laundered "were derived from the specified unlawful activity of mail fraud." The Court further noted that it had found no plain error in like circumstances in U.S. v. Silvestri, 409 F.3d 1311 (11th Cir. 2005). [Note: Cox, J., concurring, stated that he thought Silvestri was wrongly decided, because a jury could not find that a defendant knew the proceeds were derived from mail fraud without being instructed on what "mail fraud" involved].
The Court also rejected the argument that the jury should have been instructed on the "materiality" element of mail fraud. The Court noted that Martinelli himself need not have committed a mail fraud offense in order to be guilty of money laundering. Further, the district court, though not specifically defining materiality, told the jury that the specified unlawful activity was a scheme to defraud. Finally, Martinelli’s misreprensentations "were anything but immaterial."
The Court agreed with Martinelli that the district court should have given his requested "good faith" defense jury instruction. However, based on the instruction regarding whether Martinelli knew the proceeds were from a scheme to defraud, and on the "knowingly" element of the offense, that the jury had to find that the act "was done voluntarily and intentionally and not because of accident or mistake," the jury had to rule out the possibility that Martinelli actually harbored a good-faith belief in the legitimacy of the business before it could have found that he knew the money represented proceeds of mail fraud. Finally, the failure to give a good faith instruction did not impair Martinelli’s ability to present a defense, having argued good faith to the jury in closing argument.
The Court also rejected Martinelli’s challenge to the failure to instruct the jury that mere "puffing" or mere carrying on normal business expenses, did not constitute fraud, or money laundering. The Court found that the misrpresentations went beyond mere "puffing," and that the instructions sufficiently excluded the possibility of convicting based on legitimate non-fraudulent expenses.
Turning to the sentence, the Court found Booker error and remanded for resentencing.

Martin: 7-day sentence too low for HealthSouth defrauder

In U.S. v. Martin, No. 05-16645 (July 11, 2006), on a government appeal of a sentence for a defendant convicted in the HealthSouth fraud, the Court vacated the sentence and remanded for resentencing.
After a first sentencing at which the district court imposed no imprisonment and only probation, and after a first remand after appeal based on the district court’s failure to explain its reasons for its significant downward departure, at resentencing the district court imposed just a seven-day sentence, noting the defendant’s substantial cooperation with the government in the prosecution of others involved in the fraud. The government appealed, arguing that, although the defendant should get a sentence reduction for cooperation, the sentence was too low in relation to his guideline range of 108-135 months.
Citing U.S. v. McVay, 447 F.3d 1348 (11th Cir. 2006), in which the Court vacated the lenient sentence imposed by the same district court on another executive involved in the HeathSouth fraud, the Court noted that a light sentence for such a massive fraud was not easily reconciliable with the § 3553(a) factors. Here, the district court made a 23-level downward departure. Even Martin’s extremely valuable cooperation was "not a get-out-of-jail-free card." Further, the district court erred by taking into account the "injury" to Martin resulting from his exposure to civil liability for his fraud, a liability which resulted not from his cooperation but from his misconduct. A seven-day sentence is "shockingly short." It failed to serve the purposes of § 3553(a), in failing to reflect the seriousness of the conduct, and to afford adequate deterrence (which the Court found particularly important in the context of white-collar crime). Further, though the district court cited the lack of jail time of the lead defendant, Richard Scrushy, he was not a "valid comparator" because he was acquitted on all counts. Finally, the Court ordered the case reassigned to another district judge, noting its prior reversals of the judge in this and related cases.

Castro: Fast Track Program Not Unreasonable

In U.S. v. Castro, No. 05-16405 (July 12, 2006), the Court rejected a defendant’s challenge to his sentence for illegal reentry, finding no error in the refusal to grant him a downward departure based on the fact that some districts in the United States have a fast-track program that results in sentencing disparities.
Pointing out that some districts, but not his in the Northern District of Georgia, have a fast track program that allows defendants to plead guilty faster and receive a reduced sentence, Castro sought a lesser sentence on this basis, pointing to the disparities it creates among districts. The Court rejected this argument. The Court found that the sentence was consistent with the Guidelines. Further, any disparity created by the fast-track program was not within the scope of § 3553(a)(6), which instructs courts to avoid sentencing disparities. By allowing the fast-track program only in some districts Congress "implicitly determined that the disparity was warranted." In so holding, the Court joined every circuit to have considered the issue.
The Court rejected, on plain error review, an equal protection challenge to the fast track disparity. In the absence of precedent on point from the Supreme Court or the Eleventh Circuit, any error could not be "plain."

Nunez: Reasonable Suspicion to stop car exiting suspected grow house

In U.S. v. Nunez, No. 04-14995 (July 11, 2006), the Court reversed the district court’s grant of suppression of evidence, finding that "reasonable suspicion" supported the police’s stop of a vehicle found to contain marijuana.
A police officer was conducting surveillance of a residence in Cape Coral, Florida, believed to be a marijuana grow house. He was told that a search warrant had been obtained for this residence, to search for marijuana. The officer observed Nunez carry a black garbage bag from the residence into a vehicle parked outside the residence. Later, the truck drove away. The officer stopped it, and smelled cannabis. The black garbage back contained 7.4 pounds of marijuana.
The officer had reasonable suspicion for the stop, the Court held, noting that the officer had reason to believe the bag, coming from a suspected marijuana grow house, which was under surveillance, contained marijuana or related contraband.

Poyato: Safety Valve Findings by Judge, not Jury

In U.S. v. Poyato, No. 05-13135 (July 10, 2006), the Court held that a jury’s acquittal on the court of being a felon in possession of a firearm did not affect a sentencing court determination whether a defendant is eligible for a safety valve sentence reduction below the mandatory minimum.
The defendant’s drug trafficking convictions subjected him to a minimum mandatory sentence of 36 months. The defendant would have been eligible for a safety valve sentence reduction below this minimum if, inter alia, he did not possess a firearm in connection with the offense. The district court stated that if it were the fact-finder, it would find that the defendant failed to satisfy this condition because it concluded by a preponderance of the evidence that the defendant possessed a firearm in connection with his drug trafficking. However, the court felt precluded, post-Booker, from making this finding because the jury had acquitted the defendant of the firearm count.
Reversing, the Court stated that the safety valve statute instructs the district court to make the relevant findings, and Booker did not affect this. Further, the safety valve involves sentencing below a minimum, not sentencing above a maximum, and therefore did not trigger the Apprendi principle. Finally, the safety valve statute instruction to sentence pursuant to the Guidelines did not trigger a maximum sentence, but an advisory sentence.

Crisp: Restitution alone not valid reason for 5 hr. sentence

In U.S. v. Crisp, No. 05-12304 (July 7, 2006), on a government appeal, the Court held that the district court erred when, in imposing sentence on a fraud defendant and in taking account of the defendant’s substantial assistance, the sentencing court imposed a sentence of five hours’ incarceration and probation.
At sentencing, the district court initially stated that it would impose a sentence of no incarceration, and probation, but when the government pointed out that incarceration was required for a Class B felony offender, the court imposed five hours of incarceration and probation. The district court explained that it wanted the defendant to be able to make restitution to the bank that he had helped defraud.
Reversing, the Court pointed that even post-Booker a below the Guideline sentence based on cooperation must be, in fact, based on cooperation, not on the prospect of restitution.
Turning to the district court’s discretion under § 3553(a), the Court found it unreasonable for a sentencing court to rely so heavily on restittution as a factor in sentencing. "Crisp did not receive so much as a slap on the wrist – it was more like a soft pat." The sentence failed to achieve the other purposes of sentencing besides restitution, e.g. reflect the seriousness of the offense. Moreover, given the defendant’s limited assets and income, the prospect of restitution of more than $400,000 was illusory. The Court also noted the wrong incentive in rewarding a defendant with less jail time, in order to make restitution, as the greater the loss the less the sentence would be.

Stickle: Venue in Southern District of Florida ok

In U.S. v. Stickle, No. 05-12077 (July 6, 2006), the Court rejected the arguments of the owner of a transportation company who was convicted of polluting international waters, after it dumped wheat contamined from oil into the Indian Ocean.
The defendant claimed that he was improperly charged with violating 33 C.F.R. § 151.10(a), which criminalizes dumping by a "ship other than an oil tanker." The ship in question was originally an oil tanker, but was later certified, inspected and approved for use as a freight vessel. The Court concluded that the indictment was therefore proper, noting that the approval forms the ship obtained clearly referred to use as a freight vessel, not an oil tanker.
The Court also rejected the argument that venue should have proved beyond a reasonable doubt, adhering to its caselaw which provides that matters that are not elements of the crime should be proved beyond a reasonable doubt.
The Court rejected the argument that venue did not exist in the Southern District of Florida for the conspiracy count, when the locus delicit was the Indian Ocean, and the only act committed in Florida was a co-conspirator’s lie in response to a question from a law enforcement agent investigating the offense. The Court held that "the jury reasonably concluded that the false statement impeded the inviestigation." [Query: What about the caselaw which holds that there is a distinction between a conspiracy and subsequent acts of concealment, e.g. Grunewald v. U.S., 353 U.S. 391 (1959)?].
The Court also rejected the argument that there was no venue in the Southern District of Florida for the substantive illegal discharge offense. The Court noted that because the offense occurred on the high seas, the last known residence of one of the offenders governed venue, and here one offender lived in the Southern District of Florida.

Tamari: Search of Arriving Vehicle Ok

In U.S. v. Tamari, No. 05-10618 (July 6, 2006), the Court rejected a defendant’s Fourth Amendment challenge to a search of his vehicle.
Law enforcement agents obtained a search warrant to search a rural property in Southwest Miami. The warrant authorized search of vehicles "on the property." While the search of the property was underway, the defendant appeared on the property, behind the wheel of a Hummer. After evasive answers and a failure to produce identification and the vehicle’s registration, the police searched his vehicle. It ultimately found evidence connecting Tamari to a drug trafficking conspiracy, for which he was convicted by a jury.
The Court rejected the argument that the warrant to search vehicles "on the property" did not authorize a search of a vehicle which was driven onto the property during the search, citing U.S. v. Alva, 885 F.2d 250 (5th Cir. 1989), which "passed on [this] precise question," and so also so held.
The Court stated that, in the alternative, the automobile exception applied, because the circumstances presented probable cause to search Tamari’s vehicle. The agents were searching a property which they believed was part of a large-scale drug conspiracy. They had already seized cocaine, cash and firearms on the premises when Tamari arrived in his vehicle. He gave evasive answers and was unable to produce identification or the vehicle’s registration.
Moreover, once a canine alerted to the vehicle this alone gave the agents probable cause for their search.

Estupinan: MDLEA is Constitutional

In U.S. v. Estupinan, No. 05-16279 (June 28, 2006), the Court rejected the argument that Congress exceeded its authority under the Piracies and Felonies Clause of Article I of the Constitution when it adotped the 46 U.S.C. app. § 1903, the Maritime Drug Law Enforcement Act (MDLEA).
The Court stated that inasmuch as the trafficking of narcotics is condemned universally by law-abiding nations, it was not fundamentally unfair for Congress to provide for the punishment of persons apprehended with narcotics on the high seas.

Norris: Legal Orchids Are Part of Sentence

In U.S. v. Norris, No. 04-15487 (June 23, 2006), the Court affirmed a sentence imposed on an offender convicted of importing orchid species from Peru into the United States in violation of CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora).
The defendant claimed that the market value assigned to the orchids was erroneous, because it was on the market value of the orchid shipments in their entirety, rather than on the market value of the orchids that had been undocumented in the the CITES permits accompanying each shipment. Rejecting this argument, the Court noted that the defendant tried to avoid customs’ detection of the undocumented orchids by mixing them in the same shipment with large quantities of documented orchids. "[T]he legally imported orchids were an integral part of the conspiracy." Consequently, the legal orchids were part of the "relevant conduct," and was appropriately considered in setting sentence.

Mitsven: Supervised Release required for probation revocation

In U.S. v. Mitsven, No. 05-12647 (June 22, 2006), the Court held that, on revocation of probation, a district court was required to impose a three-year term of supervised release.
The Court noted that the probation revocation statute instructs sentencing courts to resentence a defendant under Subchapter A of the sentencing laws. Subchapter A in turn instructs to impose a term of imprisonment under Subchapter D. 18 U.S.C. § 3583(a), which is part of Subchapter D, instructs that supervised release must be imposed if the statute of conviction so requires. Mitsen’s original statute of conviction, 21 U.S.C. § 841(b)(1)(C), provides that a three year term of supervised release must be imposed if the defendant is sentenced to a term of incarceration. Since the revocation sentence included a four-month term of incarceration, supervised release was required.

Wilk: Six Months Before Trial Is Reasonable Death Notice

In U.S. v. Wilk, No. 05-12694 (June 20, 2006), the Court, on a defendant’s interlocutory appeal which claimed that the government’s notice of intent to seek the death penalty was not given with a "reasonable time before trial," as required by 18 U.S.C. § 3593(a), held that the Death Notice filed six months before the trial was reasonable notice.
The Court noted that, from the start, the parties knew this was a likely death penalty case, and Wilk’s counsel began to prepare a death defense months before the Death Notice was filed. Further, the six month period between the Death Notice and the trial was itself objectively reasonable. The Court noted that the date of trial, for purposes of § 3593(a), is the actual date of the trial, not the originally scheduled date. The Court noted that continuances of trial did not change its analysis. Moreover, six months sufficed for the defense Wilk intended to present at trial.

Schwab: Public Defender Conflict Not Prejudicial

In Schwab v. Crosby, No. 05-14253 (June 15, 2006), the Court denied habeas relief to a Florida inmate sentenced to death for a 1991 murder.
The Court rejected Schwab’s ineffective assistance of counsel claim based on the fact that his lawyer, a public defender, declined to cross-examine fellow lawyers from the public defender’s office who were called to the stand to testify about the chain of custody of an incriminating letter Schwab sent to the public defender’s office. The Court noted that no prejudice arose because the testimony was about uncontested aspects of the chain of custody.
The Court also rejected the argument that Schwab’s counsel was presumptively prejudiced by the conflict of interest of the public defender’s office. The Court noted the deferrence provisions of AEDPA, as well as the Teague limitation on retroactivity of Supreme Court cases in habeas. The Court found that no Supreme Court had clearly held that prejudice would be presumed in Schwab’s case, that is, outside the multiple representation context, and therefore rejected the presumed prejudice argument.
The Court also found harmless any error in the Florida trial court’s description of the evidence in mitigation, noting that the "horrendous facts" of the case (the defendant sexually assaulted the victim before strangling him to death) indicated that any error was outweighed by the aggravating factors.

McGuiness: Obstruction of Justice in Escape

In U.S. v. McGuiness, No. 05-10797 (June 15, 2006), the Court affirmed the imposition a two-level obstruction of justice sentence enhancement on a defendant convicted of escape.
While a federal fugitive, McGuiness was approached by officers at a restaurant. McGuiness presented a false i.d. and claimed he was staying at nearby Holiday Inn. Police released him when his false name did not turn up on their database. Several hours later, when police realized no one by the assumed name was staying at the Holiday Inn, police, using a tracking dog and helicopter, after 24 hours, found the defendant hiding in woods near his hotel.
At sentencing, the district court imposed a two-level sentence enhancement for obstruction of justice, based on USSG § 3C1.1, cmt. n.4, which provides that this enhancement applies when a defendant provides a materially false statement to a law enforcement officer that significantly impeded the investigation. The Court affirmed this finding, noting that the use of a police dog and helicopter would not have been necessary had the defendant been truthful about his identity when first approached.
The Court rejected McGuiness’ argument that an obstruction enhancement should not apply to an escape offense, because conduct to elude capture is inherent in the continuing offense of escape. The Court noted that the Guidelines exclude some offenses from the obstruction enhacement’s application; however, escape was not one of the excluded offenses. Moreover, use of false identification makes it more difficult for law enforcement to locate an escapee.
The Court rejected the defendant’s argument that he should not have been ordered to pay a $4,000 fine, because of his inability to pay. The Court cited the defendant’s own statement that he had hidden cash away before commencing his prison term.

Bascomb: Bound by Appeal Waiver

In U.S. v. Bascomb, No. 05-13932 (June 14, 2006), the Court dismissed a defendant’s appeal because he agreed in his plea agreement to an appeal waiver.
At sentencing, the district court expressed reservations about the harshness of imposing a mandatory 120-month minimum sentence on a defendant convicted of cultivating marihuana at his home. The defendant sought to raise this point on appeal. The Court held that, notwithstanding the district court’s comments, the defendant remained bound by the written terms of his plea agreement.

Johnson: Sentence within statutory limits not disproportionate

In U.S. v. Johnson, No. 05-14889 (June 13, 2006), the Court affirmed a 140-month sentence for a defendant convicted of several counts of producing and distributing child pornography.
One victim, whom the defendant photographed, testified that sexual activity with the defendant started at age 8 and continued for six years.
The Court rejected Johnson’s argument that his sentence was disproportionate and therefore unconstitutional under the Eighth Amendment. Although Johnson had not raised this argument in the court below, the Court applied de novo, instead of plain error review, because the district court did not give Johnson an opportunity to object to his sentence.
The Court asserted that a sentence within the statutory limits generally does not violate the Eighth Amendment. Here, each count of conviction carried a statutory maximum punishment of 50 or 40 years. Hence the 140-month sentence was within the statutory limits. Johnson therefore failed to make a threshold showing of disproportionality.

Dowd: 305-sentence affirmed for 65 year old felon

In U.S. v. Dowd, No. 05-15067 (June 13, 2006), the Court affirmed a 305-month sentence on a defendant convicted of robbing a postmater and placing his life in jeopardy, in violation of 18 U.S.C. § 2114(a), use of a firearm in the commission of a crime of violence, in violation of § 924(c), unlawful conversion of money orders, in violation of § 500, and felony possession of a firearm, in violation of § 922(g)(1).
The Court rejected Dowd’s argument that the felon in possession count should have severed from his trial for the robbery of the post office, because the possession predated the robbery by several days. The Court noted that no compelling prejudice arose from the joinder, because the jury would have heard all of the firearms-related evidence anyway, because it contradicted Dowd’s primary defense that he used only a toy gun in the robbery. Moreover, the proof of Dowd’s guilt in the robbery was extensive and overwhelming.
The Court also rejected Dowd’s challenge to the admission of his confession. Although Dowd did not sign the Miranda waiver, he signed the portion of the form expressing that he understood his Miranda rights and he thereafter expressed his willingness to speak to investigators. Dowd did not even equivocally suggest that he wished to cease questioning.
The Court rejected Dowd’s Double Jeopardy challenge to being punished twice for use of a firearm, once for the robbery at gunpoint of the post office, and again for use of a firearm. The Court noted that Congress specifically intended consecutive punishment in this instance. Even though the offenses involve the same elements, this did not change the Double Jeopardy analysis because there was clear legislative intent to impose cumulative punishments.
The Court rejected Dowd’challenge to his sentence under the Armed Career Criminal Act. The district court relied on the transcripts of plea colloquys in Dowd’ prior State convictions as the basis for concluding that his prior burglaries qualified as predicate violent felonies under ACCA. This was in keeping with Shepard v. U.S., 544 U.S. 12 (2005).
The Court also found no error in the substitution of judges after trial, for sentencing, pointing out that the sentencing judge was sufficiently familiar with Dowd’s trial to sentence him.
Finally, the Court rejected Dowd’s reasonableness challenge to his 305-month sentence. "While it is true that Dowd is over 65 years old, it is also undeniable that Dowd committed a violent felony at that age."

Atwater: Counsel did not preseve Batson Claim for Habeas

In Atwater v. Crosby, No 03-16259 (June 12, 2006), the Court denied habeas relief to a Florida inmate sentenced to death for a 1989 murder.
The Court recognized that the Florida Supreme Court incorrectly applied Batson v. Kentucky when it concluded that there was no error in the striking of the sole black juror on the venire. However, given the great deference owed to the Florida courts, and defense counsel’s failure in the Florida state trial court to present evidence of how similarly situated white jurors had been treated differently by the prosecution, the Court concluded that the error was not unreasonable, and therefore unworthy of habeas relief.
The Court also found no grounds for habeas relief in the Florida Supreme Court’s conclusion that Atwater’s counsel was not ineffective in seeking to spare Atwater’s life on the ground that he was guilty of second-degree murder only. The Court noted that this was a plausible defense strategy in light of the overwhelming evidence of guilt.
The Court found that Atwater had defaulted his claim that counsel was ineffective for failing to allow him to testify, and that, in any event, Atwater was not prejudiced by his failure to testify in light of the overwhelming proof of guilt.
The Court also found no error in the denial of an evidentiary hearing on Atwater’s claim that counsel was ineffective in failing to put on mitigation evidence at the penalty phase. The Court noted that this was virtually the same evidence, through other witnesses, as the evidence which was presented.