Eleventh Circuit Court of Appeals - Published Opinions

Thursday, April 26, 2007

Mauk: Dismiss w/o prejudice to let habeas petitioner exhaust

In Mauk v. Lanier, No. 06-12137 (Apr. 23, 2007), the Court affirmed, on failure to exhaust grounds, the denial of habeas relief to Georgia prisoner who argued that the Georgia appellate court which affirmed his Georgia conviction ran afoul of his Sixth Amendment right to jury trial when it determined that the outdoor area in which Mauk committed an act of sodomy was not a "private place" and therefore ran afoul of the Georgia statute which criminalized sodomy in a "public place."
Without reaching the merits of Mauk’s Sixth Amendment argument, the Court found that Mauk had not exhausted this argument in the Georgia courts. The Court remanded the case with instructions to dismiss the petition without prejudice, in order to give Mauk an opportunity to exhaust his argument in the Georgia state courts.

Monday, April 23, 2007

Livesay: Probation unreasonable for key HealthSouth fraud participant

In U.S. v. Livesay, No. 06-11303 (April 19, 2007), the Court reversed as unreasonable a sentence of probation on a defendant convicted of involvement in HealthSouth’s "$1.4 billion dollar securities fraud."
The Court found that the district court’s § 5K1.1 downward departure was excessive. The advisory guidelines range was 78-97 months. Livesay was a "key" participant in the offense. Citing U.S. v. Martin, 455 F.3d 1227 (11th Cir. 2006), in which it also reversed a low sentence for another important participant in the HealthSouth fraud, the Court noted that valuable cooperation "is not a get-out-of-jail free card." Livesay, moreover, did not withdraw from the conspiracy until after it was discovered. A probation sentence fails to deter other white collar criminals. Although Livesay was below Martin in the HealthSouth hierarchy, he still has "power." Further, Livesay personally profited from the fraud for several years.

Garcia-Jaimes: Can't Possess Atlanta Weapon While in Texas

In U.S. v. Garcia-Jaimes, No. 05-14475 (April 19, 2007), the Court affirmed drug trafficking and money laundering convictions against multiple defendants, but reversed one gun possession conviction.
As to the money laundering convictions, the Court rejected the argument that the evidence was insufficient because the government only established that drug money was hidden from the police inside cars loaded on the car hauler destined from Mexico, and never showed that any funds were actually transported outside the United States. The Court stated that hiding money inside cars on car hauler trailers was an attempt to conceal the money’s association with an illegal enterprise. This sufficed for purposes of establishing guilt under 18 U.S.C. § 1956(a)(2)(B)(i).
The Court reversed one defendant’s gun possession conviction. This defendant stayed in Texas or Mexico at all relevant times; the weapons were seized in Atlanta. Thus, this defendant was not in a location where he exercised possession over the weapons.

Wednesday, April 18, 2007

Orisnord: Fleeing is a "Crime of Violence"

In U.S. v. Orisnord, No. 05-14659 (Apr. 11, 2007), the Court rejected challenges to the sufficiency of the evidence by defendants convicted of charges arising out of a staged home invasion robbery of drugs. As to one defendant, the Court accepted, without elaboration, the government’s concession that the evidence was insufficient only as to the firearms convictions.
The Court rejected the argument that the Confrontation Clause was violated when the court did not permit additional questioning of an ATF agent regarding his tactical methods. The court found that the questioning which was permitted sufficed to assess the agent’s credibility.
The Court further affirmed the denial of requests to conduct post-verdict interviews of specific jurors regarding juror impropriety. The Court found that the improprieties at issue did not warrant further inquiry.
Turning to the sentences, the Court held that the crime of fleeing and eluding law enforcement officers qualified as a "crime of violence" for purposes of the career offender sentence enhancement provisions of the guidelines. Noting the "serious potential risk" posed by fleeing law enforcement, the Court joined several other circuits (except the Ninth) to hold that fleeing constitutes a "crime of violence." Finally, the Court found the 420-month sentences "reasonable."

Ohayon: Acquittal on key factual issue precludes retrial on related count

In U.S. v. Ohayon, No. 05-17045 (April 12, 2007), the Court (Pryor, Birch, Nanble b.d.) held that the government was collaterally estopped from retrying Ohayon on the charge of conspiracy to possess ecstacy with intent to distribute, a count for which the jury was unable to reach a verdict, when the jury had acquitted him, in the same transaction, of the charge of attempted possession with intent to distribute.
Citing Ashe v. Swenson, 397 U.S. 436 (1970), the Court noted that the collateral estoppel inquiry focused on whether a rational jury could have grounded its acquittal on a factual issue other than that which the defendant seeks to foreclose from consideration, taking account of the pleadings, evidence, charge and other relevant matter. Here, Ohayon’s only defense was that he was unaware that the bags he picked up contained drugs. The jury’s questions to the court during deliberations focused on this issue. The evidence supported the defense. Hence, this issue was resolved in Ohayon’s favor with the attempt acquittal at the first trial, and this foreclosed his subsequent conviction on the conspiracy count.
The Court rejected the government’s argument that the very existence of a partial verdict itself meant that the jury must have rested its acquittal and non-decision on different grounds. The Court noted that the precedent upon which the government relied postdated U.S. v. Larkin, 605 F.2d 1360 (5th Cir. 1979), and was inconsistent with Ashe. In addition, one cannot impute a single, rational basis to a mistried count, since, by definition, the jury failed to reach agreement on that count.
The Court rejected the argument that knowledge of the contents of the bags in question was not an essential element of the conspiracy charge. Conspiracy requires proof that the defendant knew the essential nature of the conspiracy, which in this case meant he was aware of the contents of the bags.
The Court distinguished U.S. v. Brown, 983 F.3 201 (11th Cir. 1993). Brown stated that an "identity" of legal issues must exist in order for collateral estoppel to apply. The Court acknowledged that no identity of legal issues existed in Ohayon’s case, because attempt and conspiracy have different elements. But Brown’s "identity" requirement was unnecessary to its holding. Further, Brown departed from earlier precedent, which focused on factual, not legal identity of issues. Finally, Brown has not been followed in subsequent cases.

Wednesday, April 11, 2007

Garey: Right to Counsel is "Preeminent" vs Self-Representation

In U.S. v. Garey, No. 05-14631 (Apr. 11, 2007), the Court (2-1) set aside the defendant’s guilty plea because the district court violated his right to counsel.
At the plea colloquy, the defendant asked to be relieved of appointed lawyer, whom he felt had a conflict because he was one of the victims of the defendant’s alleged crime – which involved threats of using a weapon of mass destruction. The trial court told the defendant he could only proceed without this lawyer if he represented himself. The defendant said he would go forward with self-representation involuntarily, because he wished to be represented by counsel – but not by his current court-appointed lawyer.
Noting the difficulty of reconciling the right to counsel and the right to self-representation, the Court noted that the right to counsel is the "preeminent" of the two. Consequently, a defendant must clearly invoke the right to self-representation. Here, Garey did not do so, because he stated that he would only proceed without representation "involuntarily." Accordingly, the Court vacated Garey’s guilty plea and remanded the case.

Lett: No Rule 35(a) authority to modify sentence where error was not "clear"

In U.S. v. Lett, No. 06-12537 (Apr. 6, 2007), the Court held that a sentencing "error" was not "clear" enough (if sentencing error even occurred) to authorize the district court’s correction of a sentence pursuant to Fed. R. Crim. P. 35(a).
The defendant, a war veteran who had served the country with distinction, was convicted of drug trafficking. His guideline sentence was 70 months. The statutory mandatory minimum was 60 months. The defendant sought a safety-valve reduction below the mandatory minimum – and the guideline sentence. Believing that it was not authorized to sentence below the mandatory minimum when the Guideline range was above the mandatory minimum, the district court imposed a 60-month sentence. A motion was then filed under Rule 35(a), arguing that post-Booker, the court was in fact authorized to grant the defendant a safety-valve sentence. The district court noted that the answer to this question was "not clear" because of the lack of applicable caselaw. It decided to modify the sentence, and imposed a sentence of time served, in effect, eleven days.
Reversing, the Court of Appeals pointed out that to show "clear error" under Rule 35(a), a party had to show "obvious errors." Here, the error was not obvious, because the district court merely misunderstood (at most) its sentencing discretion, but still imposed a permissible sentence under the Guidelines and applicable statutes. "Arguable error is one thin, and clear error is another." In the absence of caselaw on point in the Circuit, no clear error occurred. The Court remanded with instructions to impose the original 60 months sentence.

Tuesday, April 10, 2007

Robbins: Conviction becomes final after sentence becomes final

In Robbins v. Sec. Dep’t of Corrections, No. 05-14992 (Apr. 3, 2007), the Court reversed the dismissal on untimeliness grounds of a § 2254 habeas petition. Accepting the State’s confession of error, the Court ruled that a conviction is not final until affirmed on direct appeal. Here, the state court imposed a sentence on resentencing, and Robbins’ statute of limitations began to run after this sentence became final, subsequent to his conviction.

Wednesday, April 04, 2007

Clay: 60-month sentence ok for extraordinary rehabilitaton.

In U.S. v. Clay, No. 06-10088 (Apr. 3, 2007), the Court (Carnes, Pryor, Farris b.d.) affirmed the imposition of a 60-month sentence on a defendant convicted of methamphetamine trafficking, when the advisory Guidelines range was 188-235 months.
The Court first rejected Clay’s challenge to the denial of his motion to suppress. The Court found that the police had reasonable suspicion to pat-down Clay’s person when they saw a shotgun in plain view. The search of Clay’s pocket was also reasonable, because the object the officer felt in Clay’s pocket felt like a screwdriver that might be used as a weapon (it turned out to be an empty barrel from a ball-point pen, which is used for ingesting narcotics).
The Court held that the district court did not err in relying on acquitted conduct in enhancing Clay’s sentence. The resulting increase in the sentence – 3.7 times the bottom of the Guideline range – was not so extraordinary as to violate Due Process.
Rejecting a government appeal, the Court held that the sentence was not unreasonable. The Court reiterated that extraordinary reductions from the Guidelines based on § 3553(a) "must be supported by extraordinary circumstances." Here, the district court found extraordinary rehabilitation in the time after Clay’s indictment, and before his conviction. Clay worked a second job, inspired fellow drug addicts to overcome their addiction, and visited a juvenile detention center to encourage young people to change their lives.