Gonzalez: No Plain Error in sentencing where court would have reached same result absent error

In U.S. v. Gonzalez, No. 08-10008 (Dec. 12, 2008), the Court rejected challenges to a sentence of 50-months for a defendant convicted of illegal re-entry.
The defendant argued that error occurred because the sentencing court relied on a since-amended Guideline, § 2B1.2(b)(1)(A)(ii), and treated a prior bank robbery as a basis for a 16-level sentence enhancement. Reviewing for "plain error," the Court noted that the amended guideline gave the sentencing court discretion to impose a 16-level enhancement based on this prior offense. Thus, even though the enhancement was no longer mandatory, the error was not plain because nothing in the record suggested that the court would impose a lesser sentence on resentencing.
The Court also rejected the argument that the sentence was unreasonable. "In consideration of the § 3553(a) factors, the district court does not need to discuss or state each factor explicitly. An acknowledgment the district court has considered the defendant’s arguments and the § 3553(a) factors will suffice." Here, the district court satisfied these requirements.

Jones: No Crack Reduction for 1994 12kilos offender

In U.S. v. Jones, No 08-13298 (Nov. 19, 2008), the Court upheld the denial of a § 3582(c)(2) sentence reduction to a crack offender.
Jones was originally sentenced in 1994 based on Guideline offense level 38, for a quantity of crack cocaine he admitted was in excess of 12 kilos. The current Guidelines still provide for level 38 for offenders at this quantity of cocaine, even after the recent Guideline amendments. Accordingly, Jones did not qualify as an offender who guideline range was lowered, and therefore was not eligible for a sentence reduction under § 3582(c)(2).
The Court rejected Jones’ reliance on Booker. The Court pointed out that his sentence might be higher today as result of a Booker variance. Further, § 3582(c)(2) allows sentence reduction only when lowered by the Sentencing Commission. Booker was therefore inapplicable.

James: No 3852 reduction when offense level unchanged

In U.S. v. James, No. 08-12067 (Nov. 12, 2008), the Court held that a crack cocaine offender was not eligible for Amendment 706’s retroactive sentence reduction, because the Amendment did not affect the calculation of James’ offense level in a way favorable to him. At his original 1989 sentencing, the base offense level for James 10-15 kilos of crack cocaine was 36. The Guidelines were later amended to increase the punishment to level 38. As a result, James was not entitled to resentencing under 18 U.S.C. § 3582(c)(2).

Steed: Alabama statute not "clearly unconstitutional" for 4th Amend. purposes

In U.S. v. Steed, No. 08-10557 (Nov. 10, 2008), the Court affirmed a marihuana trafficking conviction.
The Court rejected the argument that the marihuana seized from the tractor-trailer the defendant was driving should have been suppressed because the Alabama statute pursuant to which the police officer inspected the truck’s paperwork and equipment (and ultimately discovered marihuana) was clearly unconstitutional. Without reaching the question whether the Alabama statute was, in fact, unconstitutional, the Court held that it was not "clearly unconstitutional," and the police could therefore in good faith rely on it and conduct the inspection.
The Alabama statute permitted police in effect to inspect trucks at any time, at any place, and for any reason. The Court nonetheless concluded that it was not "clearly unconstitutional."
The statute gave "notice" that specifically designated officials may inspect vehicles. The scope of the inspection was limited to "commercial motor vehicles." Although the statute in effect allowed inspections at any time, this was reasonable because commercial trucks operate at all hours. Although the state lacked a limitation with respect to place, this too was reasonable because it is easy for trucks to avoid designated checkpoints. Finally, although the statute placed no limitation on the police’s discretion to inspect, this presented no concern.
The Court rejected the argument that the police officer, testifying as an expert, was permitted to give hearsay testimony about police knowledge of trends in drug trafficking. The Court found no violation of FRE 703, noting that the testimony was not improperly conveying conversations between the police officer and non-testifying witnesses and co-defendants, but instead properly establishing how his "personal training and experience" formed the basis for his knowledge of drug trafficking, criminal indicators, and the commercial trucking industry.
The Court also rejected the argument that the officer violated Rule 704(b) by testifying as to the defendant’s state of mind, an issue that should have been left to the trier of fact. The Court found that the officer properly testified about the nervousness of the defendant, but left it to the jury to decide whether this nervousness established a guilty state of mind.
The Court rejected a challenge to the "deliberate ignorance" instruction, finding that any impropriety in giving this instruction was not prejudicial because the judge also gave the jury an "actual knowledge" instruction and there was sufficient evidence to support this instruction, in light of the defendant’s nervousness and the suspicious state of his paperwork.

Garey: Upholding Domestic Terrorism Enhancement

In U.S. v. Garey, No. 05014631 (Oct. 31, 2008), the Court, on remand from an en banc decision that affirmed the defendant’s conviction, affirmed the defendant’s sentence.
Garey argued that the increase in his Guideline sentence for a felony that "involved or was intended to promote a ‘federal crime of terrorism’" was unwarranted, because the enhancement requires conduct that transcends national boundaries, and his crime was "purely domestic." The Court found that the plain language of the Guidelines references conduct calculated to influence the conduct of government, without regard to national boundaries. Although a defendant’s conduct must transcend national boundaries to sustain a conviction under 18 U.S.C. § 2332b, the Guidelines do not predicate an upward adjustment on this basis.
The Court also rejected Garey’s challenge to the reasonableness of his 360-month sentence, pointing out that it was below the low-end of the Guideline range.

Anton: Court failed to explain reliability of hearsay relied on at sentencing

In U.S. v. Anton, No. 07-13124 (Oct. 30, 2008), the Court affirmed a conviction for being a felon in possession of a firearm, but vacated the sentence and remanded for resentencing.
The Court rejected Anton’s argument that his nolo contendere plea to a prior Florida state crime precluded qualifying it as a "felony." The Court pointed out that the Florida state court did not withhold adjudication, and the prior crime therefore counted as a felony.
Turning to the sentence, the Court found that the district court relied on hearsay statements in determining the number of firearms that Anton should be held accountable for, yet failed to make any findings regarding the credibility and reliability of these hearsay statements. The Court therefore remanded the case because the district court relied on "supported conclusions."

mcNeese: Govt Controls Rule 35(b) resentencing minimum

In U.S. v. McNeese, No. 08-10093 (Nov. 3, 2008), the Court held that the government does have the authority to limit a Rule 35(b) motion for reduction of sentence to one count of an indictment, and thereby preclude a district court from resentencing a defendant to sentence less than that previously imposed on a separate count of the indictment.
The defendant was convicted on two counts. On one count the court imposed a life sentence, on the other count it imposed a 240-month sentence. After the defendant gave "substantial assistance" to law enforcement, the government moved, under Rule 35(b), to reduce sentence on the count for which a life sentence was imposed, but not on the other count. The defendant wanted a sentence below 240 months. The court imposed a 240 month sentence, noting that it could not resentence below 240 months because the government had not moved for a Rule 35(b) reduction for that count.
The Court rejected McNeese’s argument that the sentencing court had authority to sentence below 240 months. The Court noted that the government could control McNeese’s sentence, and that its failure to seek a sentence reduction could only be challenged if it had "unconstitutional motives" for not doing so – something McNeese did not allege.

Prevatte: Prior Georgia Conviction Valid

In Prevatte v. French, No. 07-14536 (Oct. 28, 2008), the Court affirmed the denial of habeas relief to a North Carolina inmate, rejecting his challenges to the validity of prior Georgia convictions that were used as aggravating factors in a North Carolina death penalty sentencing. The Court rejected the argument that defense counsel had a conflict of interest at trial, crediting the state court fact-finding that no conflict existed. The Court also rejected the argument that the prosecution improperly relied on the defendant’s post-arrest silence, finding the evidence of guilt overwhelming.

Thomas: Armed Career Offenders Not Eligible for Crack Guideline Reduction

In U.S. v. Thomas, No. 08-11492 (Oct. 23, 2008), the Court, applying U.S. v. Moore, 541 F.3d 1323 (11th Cir. 2008) (career offenders are categorically ineligible for the two-level reduction made retroactively available to crack cocaine offenders), held that armed career offenders, like career offenders, are not eligible for an Amendment 706 sentence reduction. The Court reasoned that the base offense level reduction relating to crack quantities had not effect on the sentencing range of an armed career offender, which is based on USSG § 4B1.4.

Singleton: Can't Assume Powder will all become crack

In U.S. v. Singleton, No. 07-13329 (Oct. 16, 2008), the Court held that the district erred in establishing the base offense for Singleton’s crack and powder cocaine offenses at level 36, instead of level 34.
The district court arrived at the weight quantity of cocaine by assuming that the powder cocaine seized at Singleton’s motel room could all be converted to crack cocaine. This resulted in a higher base offense level, since crack cocaine is punished more severely than powder. However, the motel room did not contain enough quantities of baking soda for Singleton to convert all the powder to crack. In addition, the baggies in which the powder was found indicated that Singleton also dealt in powder cocaine, not exclusively crack. Hence, the district court’s calculation was speculative. The Court vacated the sentence and remanded for resentencing.

Valladares: 35 days is enough to prepare for Medicare fraud trial

In U.S. v. Valladares, No. 07-14592 (Oct. 9, 2008), the Court upheld the conviction and sentence of a defendant convicted of defrauding Medicare by bribing doctors to prescribe medically unnecessary medication.
The Court rejected Valladares’ argument that the district court abused its discretion when it denied her request for a continuance of the trial. The trial began 35 days after arraignment. The Court noted that the government had identified all the documents it intended to use. Further, Valladares failed to show how other billing records, if presented by her at trial, would have changed the outcome of the case.
Turning to the sentencing issues, the Court rejected the argument that the district court erred in using the commercial bribery guideline in USSG § 2B4.1 instead of the fraud guideline of § 2B1.1 to determine the base offense level. The Court noted that this case involved "fraud achieved through bribery" rather than "straight bribery" and the district court therefore applied the correct guideline.
The Court rejected the argument that fraud in which Valladares used her company in the scheme could not be counted for sentence enhancement purposes, or for calculating the restitution amount, finding that this part of the scheme was part of the "relevant conduct."
Finally, the Court rejected the argument that Ex Post Facto principles barred the imposition of forfeiture for the portion of the conspiracy that predated the effective date of one of the statutes of conviction. The Court noted that no Ex Post Facto violation occurs when a conspiracy does not end until after a statute takes effect.

Jackson: 851 approval not jurisdictional

In U.S. v. Jackson, No 07-13374 (Oct. 7, 2008), the Court held that the requirement that the government obtain approval for an appeal of a sentence from the Solicitor General was not jurisdictional. Thus, it rejected the argument that it lacked jurisdiction to consider the government’s appeal of the defendant’s sentence. The Court also rejected the argument that, in order to appeal a district court’s striking of a sentence enhancement notice pursuant to 18 U.S.C. § 851, the government must appeal before sentencing.
The Court also rejected the argument that the government’s § 851 notice was defective because it was not personally signed or approved by the United States Attorney. The Court held that this power can be delegated to Assistant United States Attorneys.

Dombrowski: 5th Amend. Right Not "Clearly Established" for Prior Conviction Admissions

In Dombrowski v. Mingo, No. 05-13140 (Oct. 3, 2008), the Court affirmed the denial of habeas corpus relief to a Florida inmate, who claimed that a Florida state judge violated his Fifth Amendment privilege against self-incrimination when, without warning Mingo of the consequences, he asked Mingo to admit, for purposes of enhancing his sentence as a Florida "habitual offender," that he had several prior felony convictions.
The Court recognized that in Miranda the Supreme Court broadly stated the scope of the privilege, and recognized caselaw in other circuits which held that the privilege applies when a court inquires of a defendant’s previous convictions for habitual offender enhancement purposes. However, the Court noted that some circuits did not construe the Fifth Amendment to apply in this situation. Thus, the right was not "clearly established." Hence, the Florida state court’s failure to apprise Mingo of his Fifth Amendment privilege was not contrary to "clearly established" law – and therefore could not give rise to habeas corpus relief.

Williams: Counsel Ineffective for Failing to Investigate Defendant's Life History

In Williams v. Allen, No. 07-11393 (Sept. 17, 2008), the Court (Birch, Dubina, Wilson) reversed the denial of habeas relief to an Alabama inmate sentenced to death for a 1988 murder.
The Court found that Williams’ counsel were ineffective at the sentencing stage in failing to broaden the scope of their investigation with regard to Williams’ life history. As a result, counsel "obtained an incomplete and misleading understanding of Williams’ life history." Minimal investigation would have led counsel to follow up on the information about Williams’ psychological problems chronicled in reports, and to interview family members who could corroborate evidence of abuse.
The Court found that Williams was prejudiced by counsel’s failure to investigate, because the evidence of Williams’ repeated beatings in childhood was not presented. Further, the murder here was not "highly aggravated," as evidenced by the fact that the jury recommended a life-sentence by a 9-3 vote (the judge nonetheless imposed the death sentence). The Court held that the Alabama Supreme Court decision, which found no prejudice, was an unreasonable application of Strickland, because the mitigating evidence, taken as a whole, "might have altered the trial judge’s appraisal of Williams’ moral culpability."

Antonelli: Parole Commission 2241 Challenge Not subject to gatekeeping

In Antonelli v. Warden, U.S.P. Atlanta, No. 08-10608 (Sept.17, 2008), the Court held that habeas petitions under 28 U.S.C. § 2241 that challenge denials of credit by the United States Parole Commission are not subject to the gatekeeping requirements of AEDPA (which require such petitioners to first obtain permission from the Court of Appeals before filed a "second or successive" petition).
As to Antonelli’s petition, however, the Court held that it was properly dismissed, because the issue it presented – whether his prior Illinois state convictions were unconstitutional – had been previously adjudicated in a prior federal habeas proceeding. Citing 28 U.S.C. § 2244(a).

Wood: No Deficient Performance on Mental Deficiency Evidence

In Wood v. Hall, No. 06-16412 (Sept. 16, 2008) (2-1, Barkett, J., dissenting), the Court reversed the grant of habeas relief to an Alabama inmate sentenced to death for a 1993 murder.
The district court granted habeas relief based on counsel’s ineffective assistance in failing to put on evidence, during the sentencing phase, of the defendant’s diminished mental capacity.
Reversing, the district court noted that trial counsel had presented some mitigating evidence, and were entitled to deference in not presented further mitigating evidence in light of the downside of this evidence, e.g. a doctor’s evaluation concluded that despite Wood’s "borderline intellectual functioning," he "still had a complete memory of his behavior at the time of the murder." The Court added that even if counsel had been deficient, there was no prejudice to Wood, given evidence of Wood’s "adaptive functioning."

Blankenship: Counsel Not Ineffective to only address guilt,not mitigation

In Blankenship v. Hall, No. 08-10511 (Sept. 15, 2008), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1978 murder.
Blankenship claimed that his state trial counsel provided constitutionally deficient representation by failing to investigate and present evidence of Blankenship’s traumatic childhood at the sentencing phase.
The Court noted that Blankenship bore the burden of proof on this issue. The Court noted counsel’s vague memories, owing to the length of time that elapsed after the trial and before they were questioned about their performance. However, the record showed that counsel knew about Blankenship’s struggle with drugs and alcohol, the family history of schizophrenia, and his "difficult background." Further, Blankenship himself was "in the best position" to inform his counsel on such matters. In order to prove that his counsel was deficient, Blankenship had to show his counsel were unaware of these matters. Blankenship did not show this. Further, Blankenship instructed counsel not to contact his family.
Finally, the Court found that counsel’s strategy at sentencing was to create doubt about Blankenship’s guilt for the murder, to the exclusion of mitigating evidence regarding punishment. "[F]aced with a brutal rape and murder of an elderly woman," Counsel’s strategy was "far from baseless," and, in fact, "sensible."

Schwartz: Affidavit Admission Was Bruton Error

In U.S. v. Schwartz, No. 05-11715 (Sept. 5, 2008), the Court reversed a $30 million fraud conviction because the admission of one defendant’s incriminatory affidavit incriminated his co-defendant, in violation of Bruton v. U.S., 391 U.S. 123 (1968).
During its case in chief, the prosecution introduced in evidence a defendant’s affidavit which set forth the name of a corporation that was using investor monies to line the personal business coffers of the persons who controlled it. Then, in closing argument, the prosecutor expressly linked a co-defendant to this corporation, as the person who controlled the corporation.
The Court found that even if the affidavit itself was insufficient to compel an incriminatory inference against the co-defendant, the prosecutor’s closing statement made the inference inevitable – and therefore "devastating." Hence, a Bruton error occurred. Moreover, the error was not harmless because the affidavit and the closing argument, though repetitive of other testimony, summarized points contained in disparate parts of a lengthy trial, and had "singular credibility," coming as it did from an alleged participant in the fraud. The Court vacated this conviction.
As to another defendant, the Court rejected the argument that the government violated his use immunity agreement by using statements in the grand jury that the defendant gave to a law enforcement agent, to obtain his indictment. The Court noted that the use immunity agreement contained a "Kastigar waiver." A Kastigar waiver means that the defendant waived his right to challenge use of his statements before a grand jury because they were obtained in violation of the Fifth Amendment. The Court inferred that by waiving the Kastigar remedy the defendant meant to waive challenges to the use of his statements before the grand jury.
The Court rejected the sufficiency of the evidence challenge of two other defendants. The Court found that the evidence showed that they knowingly participated in fraud conspiracy.

Moore: Career Offenders Not Eligible for Crack Amendment Reduction

In U.S. v. Moore, No. 08-11230 (Sept. 5, 2008), the Court ruled that career offenders are not eligible for a sentence reduction under the recent retroactive amendment to the crack quantity Guideline.
The Court noted that 18 U.S.C. § 3582(c)(2) only authorizes a sentence reduction if a defendant’s sentence is "based on a sentencing range that has subsequently been lowered." The Court ruled that this "plain language" made career offenders ineligible for a crack amendment sentence reduction. The Court explained that career offenders sentences are "based on the guideline ranges applied to career offenders under § 4B1.1." Thus the crack quantity amendments, which affected § 2D1.1, "played no role" in the calculation of career offender sentences. The Court noted that USSG § 1B1.1 "further support[ed]" this interpretation, because it provided that a retroactive amendment does not apply when it does not have the effect of lowering the a defendant’s sentence. The Court distinguished other cases in which career offenders did get the benefit of the retroactive amendment, noting that the original sentences in these cases were not based on the career offender guidelines. [Note: In relying on USSG § 1B1.1, the Court did not address whether the Guidelines are advisory in § 3582(c)(2) proceedings].

Gonzalez: No basis for $250,000 fine

In U.S. v. Gonzalez, No. 06-15365 (Sept. 2, 2008), the Court reversed the imposition of a $250,000 fine on a defendant convicted of fraud.
The Court noted that the PSI concluded that the defendant lacked the ability to pay a fine. The district court at sentencing stated without explanation that Gonzalez was able to pay a fine, and imposed a $250,000 fine. This fine was three times the maximum provided by the Guidelines. The defendant objected.
Because the record provided no explanation regarding the basis for the fine, the Court vacated the sentence and remanded for resentencing.

Williams: Intent to distribute is not actual distribution

In U.S. v. Williams, No. 07-11707 (Aug. 29, 2008), the Court upheld a jury instruction that instructed the jury that it could take into consideration the defendant’s flight – Williams, when pursued by police, drove his car up to 90 miles per hour before eventually crashing into a metal pole – in determining guilt or innocence of his drug trafficking charge. The Court rejected the argument that the flight reflected nothing more than a generalized consciousness of guilt related to outstanding warrants, rather than guilt about the drugs found in his car.
Turning to the sentence, the Court reversed the imposition of a lifetime ban on receiving federal benefits. The Court noted that 21 U.S.C. § 862 only provides for a lifetime ban if the defendant is convicted of "distribution" of controlled substances. Williams was convicted under 21 U.S.C. § 841 of possession with intent to distribute. The Court concluded that possession with intent to distribute is not actual distribution. Moreover, "if there is ambiguity," the court was obliged to favor a lenient interpretation.

Johnson: Appeal Waiver of 90-day deadline valid

In U.S. v. Johnson, No. 08-10029 (Aug. 28, 2008), the Court held that the defendant, in his appeal waiver, waived his right to challenge an order requiring him to pay $30,000 in restitution, even though the district court entered this order 39 months after his sentence was imposed, well past the 90-day deadline of 18 U.S.C. § 3664(d)(5).
The Court noted that the untimeliness of the district court’s action did not give rise to a claim that it lacked subject matter jurisdiction, because the 90-day period, like a statute of limitations, was subject to equitable tolling, and was therefore not jurisdictional. Hence, the defendant could waive his right to appeal the district court’s order. Moreover, the 39-month delay did not constitute an "extreme circumstance" which would defeat an appeal waiver, in part because the defendant’s plea agreement recognized his responsibility for a loss of $30,000. The Court recognized that different circumstances might lead to a different result, and it did not intend to give district courts "free reign" to disregard the 90-day deadline.

Mercer: Motel Room Search Valid

In U.S. v. Mercer, No. 06-13258 (Aug. 28, 2008), the Court affirmed the denial of a motion to suppress arising out of the warrantless search of the defendant’s motel room.
The defendant was arrested and taken into custody at his motel room. After he left the motel, during the night, the police, with the consent of motel employees, searched the defendant’s motel room, and found a firearm and methamphetamine. The defendant claimed that the searched violated his Fourth Amendment rights, because he had booked the motel room until the following day at noon.
The Court held that the motel employees had the authority to consent to a search of the motel room because control of the room had reverted back to the motel, in the circumstances of the defendant’s arrest.
The Court also found that a statement the defendant gave upon arrest was not obtained involuntarily, finding that defendant’s belief that his statements might help him get out of jail was not sufficient to show involuntariness.

Davis: Sentence Reduction Request Does Not Toll AEDPA

In Davis v. Barrow, No. 07-12575 (Aug. 25, 2008), the Court held that a Georgia inmate’s § 2254 habeas petition was untimely, because the inmate’s motion to reduce his sentence did not raise any legal arguments or otherwise attack the legality of his sentence. Accordingly, under Alexander v. Dep’t of Corrections, 523 F.3d 1291 (11th Cir. 2008), the motion was not the type of pleading that tolled the one-year statute of limitations of AEDPA.

Diaz: No Waiver of Right to Trial by Jury

In U.S. v. Diaz, No. 06-13782 (Aug. 22, 2008), the Court reversed a bench trial conviction because the defendant did not give a knowing and voluntary waiver of his right to jury trial.
The defendant was found competent to stand trial, despite his insistence that he was not "Michael Diaz," but had been transformed into a new person named D’Ineiehaimaye D’Inemani. Before trial, Diaz stated that he did "not want any juries infringed upon D"ine because they are not of D’Ine peers of D’Ine peoples but the plebeians and colonizers of this occupational imperialistic power structure." The district court ultimately interpreted this and other statements to waive the right to trial by jury. The court therefore conducted a bench trial, and convicted Diaz of all bank robbery charges.
Reversing, the Court found that "Diaz was unsatisfied with the persons that would form the jury, not that he wanted a bench trial." The Court pointed out that Diaz did not sign a waiver of jury form. His statements regarding his intent to waive his right to jury trial were "equivocal." The Court therefore vacated the conviction.

Benbow: Jury Instruction re: Drug-Trafficking In United States

In U.S. v. Benbow, No. 07-10560 (Aug. 18, 2008), the Court reversed a cocaine-trafficking conviction because the district court declined to instruct the jury that, in order to convict the defendant, the government had to prove that he conspired to either possess or distribute the cocaine in the United States. The Court declined to find that the evidence was insufficient as a matter of law to establish a conspiracy to possess cocaine in the United States.
The cocaine trafficking charge arose out of a sting operation involving a plan to sell large quantities of cocaine in Europe. Accordingly, the case implicated U.S. v. Lopez-Vanegas, 493 F.3d 1305 (11th Cir. 2007), which held that an agreement to traffic in cocaine which did not involve possession or distribution in the United States did not violate American criminal law. Thus, it was appropriate to instruct the jury, as the defendant requested, that the government had to prove a conspiracy to possess or distribute in the United States (not just in Europe), and it was reversible error to fail to do so.
The Court found that the evidence was not insufficient as a matter of law, because the cocaine at issue was going to originate in the United States and be transported to Europe. Since the defendant would have "constructive possession" of the cocaine while it was being transported, this fact could be sufficient to convict. The Court therefore declined to enter judgment in the defendant’s favor.

Vega-Castillo: Fast-track disparity still irrelevant at sentencing

In U.S. v. Vega-Castillo, No. 07-12141 (Aug. 19, 2008) (2-1, Barkett, J., dissenting), the Court rejected the argument that the sentencing court erred when it declined to consider the "disparity" created by unavailability of a "fast-track" disposition program in the district in which the defendant was convicted for illegal reentry, and sentenced. The Court noted that its prior precedent had held that this "disparity" was not a valid consideration, because it was "implicit" in Congressional policy. The Court held that the United States Supreme Court’s decision in Kimbrough did not abrogate prior precedent, because Kimbrough dealt with crack/powder disparities, not the "fast-track" disparity. Kimbrough therefore merely pit "reasoning against holding," not "holding against holding."

Garey: Rejection of Appointed Counsel can voluntarily choose pro se representation

In U.S. v. Garey, No. 05-14631 (Aug. 20, 2008) (en banc), the Court, overruling its precedent in Marshall v. Dugger, 925 F.2d 373 (11th Cir. 1991), held that a defendant waived his right to counsel, even though he did not clearly request to represent himself, when the defendant rejected the only counsel to which he was constitutionally entitled, understanding that his only alternative was self-representation, with its many attendant dangers.
The Court noted that, when the defendant announced that he did not want to continue being represented by appointed counsel because of a conflict, the district court denied the defendant’s motion for substitution of counsel, and set before the defendant two constitutionally permissible choices: continued representation by prior counsel, or self-representation. The district court gave "multiple warnings" about self-representation. "By rejecting appointed counsel, Garey voluntarily chose to proceed pro se as surely as if he had made a request to do so."

Harrison: "First-sale" Defense does not apply to 2318 prosecutions

In U.S. v. Harrison, No. 07-13808 (July 16, 2008), the Court held that the "first-sale" doctrine, which limits copyright holder rights, is not a defense to a prosecution under 18 U.S.C. § 2318 for unauthorized sales of Microsoft authenticating labels, which enabled purchasers to activate pirated copies of Microsoft’s programs.
The Court pointed out that Harrison was not charged with copyright infringement. Further, Congress did not incorporate the "first-sale" doctrine into § 2318. The Court noted that allowing a "first-sale" defense would effectively eliminate restrictions on secondary markets, when Congress’ purpose was to intend to eliminate secondary markets.

Lamons: Flight Attendant Arsonist Gets 271 months

In U.S. v. Lamons, No. 06-14427 (July 5, 2008), the Court affirmed convictions of an airline flight attendant for setting a fire to an airplane while in flight. The Court also affirmed a 271 months’ sentence.
The Court rejected the argument that the prosecution violated the Confrontation Clause when it introduced in evidence a compact disc of data collected from telephone calls. The Court held that no Confrontation Clause violation could occur when this type of evidence is admitted, because it is generated by a machine, not a human being who can be called as a witness and confronted. Challenges to the reliability of this type of evidence must arise under the authentication requirements of the Rules of Evidence.
The Court also rejected Lamons’ claim that the trial court violated Fed. R. Evid. 404(b) when it admitted evidence of a prior incident, for which Lamons was also convicted, in which he made a phone call, just before the departure of a flight, falsely warning that everyone on the flight "was going to die." The Court noted that this prior conviction resembled the fire-setting crime, in that both were committed by Lamons in his capacity as a flight attendant, and designed to target commercial aviation.
Finally, the Court rejected Lamons’ challenge to being sentenced on the basis of a "endangering the safety of . . . an aircraft." The Court found that the fire Lamons set partially burned and melted an HVAC hose, and that a fire is, as the pilot of the airplane testified, "one of the worse [sic] things that can happen on an aircraft."

Richardson: Single Conspiracy, not multiple

In U.S. v. Richardson, No. 06-12610 (July 3, 2008), the Court rejected the defendant’s contention that his various illegal agreements with several drug coconspirators constituted not one but multiple conspiracies.
Richardson claimed that the evidence showed unconnected drug conspiracies, not the single conspiracy charged in the indictment.
The Court rejected the argument that a variance occurred, finding that the jury reasonably could have found the existence of an underlying scheme to buy cocaine for relatively low prices in Miami and sell it for relatively high prices in Atlanta, thereby turning a profit.
Further, even if the jury could not have so concluded, the variance would not have engendered substantial prejudice, and thus would not require reversal. The government would not have been precluded from introducing any evidence. In addition, this was not a situation where a defendant on the periphery of one conspiracy was prejudiced by the admission into evidence of separate unrelated conspiracies; Richardson "was the hub."
The Court denied Richardson’s challenges to the failure to give the jury a "multiple conspiracies" instruction. The Court noted that this was not a case where several defendants were tried together for their varying degrees of participation in a single conspiracy. Multiple conspiracy instructions are not typically given in single-defendant cases. Moreover, the instruction that was given adequately informed the jury that it had to find Richardson joined in the charged conspiracy.

Peterka: Counsel Not Ineffective

In Peterka v. McNeil, No. 07-12363 (July 2, 2008), the Court affirmed the denial of Florida death row inmate’s habeas petition.
Peterka was convicted of a 1989 murder, and sentenced to death. He claimed that his counsel was ineffective for failing to put on evidence at the mitigation phase regarding his service in the National Guard, and his exemplary conduct in jail. The Court denied relief, finding that counsel made a strategic decision not to pursue the National Guard service out of concern that Peterka’s dismissal from the guard on account of his prior theft crime would surface. Further, the prison record showed that Peterka was "little better" than the average inmate.

Smith: Stolen gun and Felon in Possession are different offenses for Double Jeopardy

In U.S. v. Smith, No. 07-13202 (June 30, 2008), the Court rejected the argument that Double Jeopardy bars the government from simultaneously prosecuting and sentencing a defendant for possessing stolen firearms, in violation of 18 U.S.C. § 922(j), and for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
The Court rejected the government’s argument that the defendant had waived his Double Jeopardy challenge when he pled guilty to both charges. The Court explained that although generally a guilty plea waives all non-jurisdictional challenges to a conviction, one exception to this rule exists when the claim is that the charge is one which may not constitutionally be prosecuted – as when the charge violates Double Jeopardy. Thus, the Court turned to the question of whether the prosecution was valid.
Applying the Blockburger test, which examines whether each offense requires proof of an additional fact which the other does not, the Court concluded that no Double Jeopardy violation occurred. Proving that a defendant was a convicted felon, and proving that he knew the gun was stolen, are different.

Archer: Carrying Concealed weapon not crime of violence

In U.S. v. Archer, No. 07-11488 (June 27, 2008), the Court, on remand from the United States Supreme Court for reconsideration in light of Begay v. U.S., held that the Florida offense of carrying a concealed weapon is not a "crime of violence" and therefore is not a predicate felony to trigger "career offender" classification under the Sentencing Guidelines.
Applying the analytical framework required by Begay, the Court addressed whether carrying a concealed weapon is similar in kind and degree to the crimes enumerated as examples of "crimes of violence" in the Guidelines. The Court found that unlike burglary of a dwelling, arson and the use of explosives, which are all aggressive, violent acts aimed at other persons, carrying a concealed weapon is a "passive crime centering around possession, rather than around any overt action." Further, the offense requires no "intent to conceal the weapon," eliminating the purposeful element of the enumerated offense examples. The Court recognized that Begay abrogated prior contrary Eleventh Circuit precedent.

Woodard: Construction Possession does not require ownership

In U.S. v. Woodard, No. 06-16577 (June 27, 2008), the Court affirmed convictions for marihuana trafficking and gun possession
The Court rejected sufficiency of the evidence arguments, including an argument that a defendant possessed the gun not in furtherance of drug trafficking, but for protectin in a dangerous neighborhood. The jury could reasonably conclude otherwise, since the defendant was arrested after taking delivery of one hundred pounds of marihuana.
The Court rejected a challenge to the giving of an Allen charge, finding nothing coercive about the instruction.
The Court further rejected a challenge to the "constructive possession" jury instruction. The trial court was not required to instruct that "ownership, dominion, or control" over contraband was necessary to establish possession when it had instructed that "both the power and intention to later control" sufficed to prove constructive possession.

Brown: 3.853 motion for DNA does not toll AEDPA

In Brown v. Sec. Dep’t of Corrections, No. 06-15269 (June 19, 2008), the Court held that a Florida inmate’s motion for DNA testing under Fla. R. Crim. P. 3.853 did not constitute the kind of motion for post-conviction relief that tolled AEDPA’s one-year statute of limitations. The Court recognized that the motion’s lack of specificity would not affect whether it was "properly filed," but held that the motion was too distinct from a 3.850 motion for relief to toll the federal limitations period. The Court therefore held that Brown’s federal habeas petition was untimely.

Gorby: Second Successive Petition not Properly Filed

In Gorby v. McNeil, No 07-11003 (June 20, 2008), the Court held that a Florida death row inmate’s second successive state motion for post-conviction relief did not toll the one-year AEDPA statute of limitations for his federal habeas petition, and that the federal petition was therefore untimely.
Gorby’s second motion for post-conviction relief was untimely under Florida state rules of procedure. Gorby nevertheless argued that this motion was "properly filed," and therefore tolled the federal period of limitations, because the Florida courts addressed his motion on the merits, notwithstanding its untimeliness under Florida law – noting that state procedural defaults do not bar consideration of federal claims unless state courts expressly state that a state judgment rests on a state procedural bar. The Court rejected the analogy to state procedural defaults. The Court also noted the caselaw holding that timeliness is not affected by the fact that a court reached the merits of a claim.

Castaing-Sosa: Mandatory Minimums are Mandatory

In U.S. v. Castaing-Sosa, No. 07-14590 (June 19, 2008), on a government appeal of a sentence, the Court reversed the sentence, because the district court’s 80-month sentence fell below the 120-month statutory mandatory minimum for Sosa’s drug trafficking conviction.
The Court noted that while Booker made the guidelines advisory, it did not affect the mandatory nature of statutory mandatory minimums. The Court noted that a sentencing court can sentence below a statutory mandatory minimum only if the government has filed a substantial assistance motion, or if the defendant is "safety-valve" eligible. Neither of these applied to Sosa. The Court concluded that while the district court was understandably concerned about the higher sentence Sosa would receive in relation to his co-defendants, it was nonetheless bound to impose the statutory minimum.

Campa: Cuban Shootdown convictions upheld

In U.S. v. Campa, No. 01-17176 (June 4, 2008), the Court affirmed all convictions of all defendants convicted of espionage and related offenses.
The Court rejected the challenges to evidence obtained from searches authorized under the Foreign Intelligence Surveillance Act. The Court noted that the government certifications in the search application were not clearly erroneous.
The Court rejected the argument that the district court should not have held an ex parte hearing regarding the government’s discovery obligations under the Classified Information Procedures Act, noting that the Act did not prohibit such a hearing. The district court also did not err when it declined to unseal the record of its ex parte hearing, as the statute has no provision for unsealing, and the government’s right to keep some classified information from defense counsel would be ineffective if, after the trial, the government had to expose the information.
The Court also rejected a Batson challenge to the government’s challenges of black venire members, noting that the unchallenged presence of blacks on the jury.
The Court held that the failure to register as a foreign agent offense was a general intent crime, and therefore rejected the claim that a defendant’s knowledge of the registration requirement was an element of the offense.
The Court also rejected challenges to the sufficiency of the evidence, noting, among other things, the defendants’ overt acts in furtherance of a conspiracy, such as flying over Homestead Air Base, encrypted work directions, an "escape plan," and a counterfeit passport.
The Court rejected the argument that the conspiracy to murder must involve an intent to murder within the special jurisdiction of the United States, noting that mens rea does not extend to the jurisdictional elements of an offense.
The Court rejected the argument that a defendant did not know the object (murder) of the conspiracy, pointing out that he wrote a message after the shootdown of Brothers to the Rescue planes that called the "operation to which we contributed" a "success." The Court also rejected the argument that the government should have called an expert witness to interpret the messages that the defendant received from the Cuban government: "the meaning of the messages was evident." The Court added that the "malice aforethought" element of murder was established by proof of the defendant’s knowledge of the plan to shoot down planes, and that the death of persons on board was "substantially certain." (Judge Kravitch dissented, stating that the government had only proved an intent to "confront" airplanes, not to shoot them down).
Turning to sentencing, the Court agreed with Campa that he should not have received a USSG § 3B1.1 "manager or supervisor" enhancement. The enhancement was based on his managing the assets of the conspiracy, which is an insufficient basis for imposing this enhancement. The Court therefore vacated this portion of the sentence and remanded for resentencing.
As to Medina, the Court agreed that the district court should have considered whether a downward departure was warranted in light of the "little harm" that his information would caused, even if it were categorized as "top secret." The Court affirmed Medina’s obstruction enhancement, finding that giving a false name to a magistrate at a detention hearing qualifies for this enhancement.
As to Guerrero, the Court affirmed a "special skills" enhancement: "Skills in civil engineering, radio technology, and computer technology are legitimate skills that Guerrero turned to criminal purposes."

Johnson: Florida battery is a "violent felony" for ACCA

In U.S. v. Johnson, No. 07-13497 (May 30, 2008), the Court held that a defendant’s prior Florida state conviction for battery qualifies as a "violent felony" for purposes of the ACCA mandatory minimum for felon in possession of ammunition offenders who have three prior convictions.
The Court noted that the Florida battery offense requires at a minimum the actual and intentional touching or striking of another person against that other person’s will. Accordingly, the offense has the requisite use or attempted use of force necessary to qualify as a "violent felony." The Court rejected the argument that the Florida battery offense should not be considered a "violent felony" because the Florida Supreme Court had held that under Florida state law, when, as in Johnson’s case, the battery had been a misdemeanor elevated to the status of a felony, the offense did not invariably enough involve enough force to be considered a "forcible felony" for purposes of Florida’s habitual offender law. First, the Florida Supreme Court case had been decided 19 days before the Eleventh Circuit’s own prior interpretation of the Florida battery statute, and even though the Eleventh Circuit might have overlooked the case, it now remained bound by its own precedent. Second, the Florida case involve state law, not federal law, and the Court remained bound by its prior holding that "touching" or "striking" suffices to establish the element of force needed to trigger the ACCA enhancement.

Day: Challenge to Georgia Parole Board Timely

In Day v. Hall, No. 06-16060 (May 29, 2008), the Court held that a Georgia inmate’s federal habeas petition should not have been dismissed as untimely, and therefore reversed the district court’s dismissal. The Court rejected the argument that the AEDPA one-year statute of limitations started to run from date Day was first denied parole. The Court noted that his challenge to the Parole Board’s failure to promulgate an eligibility requirement for parole was properly brought as the petition for mandamus in Georgia state courts. This proceeding, combined with other proceedings, was pending for 362 days – less than the one-year limitations period.

Young: Superseding Indictment Violates Speedy Trial Act

In U.S. v. Young, No. 07-13626 (May 27, 2008), the Court held that one count of conviction should have been dismissed (with or without prejudice) for violation of the Speedy Trial Act.
The government initially indicted Young on a single count for possessing an unregistered silencer. Two months later, the government filed a five-count superseding indictment, which included the original silencer count and four additional, unrelated drug counts. Prior to trial, Young moved to dismiss the silencer count on Speedy Trial grounds, because more than seventy days had passed since his original indictment.
The Court held that the silencer count should have been dismissed on Speedy Trial grounds. The Court noted that the situation where a supervising indictment is filed is analogous to the dismissal of an indictment followed by a new indictment – a situation squarely covered by the Speedy Trial Act. The Court therefore remanded the case to the district court to determine the appropriate form of dismissal of the silencer count.

Mendez: 371 requires United States to be conspiracy's target

In U.S. v. Mendez, No. 07-13433 (May 21, 2008), the Court reversed a conspiracy to defraud the United States conviction, under 18 U.S.C. § 371, because the fraud involved Florida commercial driver’s licenses, which did not defraud the "United States," as the statute requires.
The district court had held that there was sufficient federal involvement in the fraud because the federal government issued regulations for obtaining a commercial driver’s licence. Reversing, the Court said this connection was insufficient to show that the United States was the "target" of the fraud. It also did not suffice that the Florida guidebook for licenses referenced the United States regulations, since the defendant did not know of this reference.
The Court, however, upheld Mendez’ separate conviction for unlawful production of a false commercial licence, in violation of 18 U.S.C. § 1028(a)(1). The Court rejected the argument that there was an insufficient nexus with interstate commerce. The Court pointed out that Mendez intended to operate a commercial vehicle, and, even if the vehicle never left Florida, its operation in Florida sufficed to establish the minimal nexus required.

Carruth: Failure to give Defendant Right to Allocute is Plain Error

In U.S. v. Carruth, No. 07-12060 (May 22, 2008), the Court vacated a sentence for violation of supervised release because the district court failed to give the defendant an opportunity to allocute, as required by Fed. R. Crim. P. 32.1(b)(2)(E).
On plain error review, the Court cited the text of the Rule, Supreme Court precedent, and its own precedent, for the principle that a district "must personally extend to the defendant the right of allocution." The Court added that prejudice "is presumed" when a defendant is not given an opportunity to allocute and there exists the possibility of a lower sentence.

Madera: Attorney General Decides Sex Offender Retroactivity

In U.S. v. Madera, No. 07-12176 (May 23, 2008), the Court reversed the district court for failing to dismiss an indictment that charged Madera with failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a) and the Adam Walsh Child Protection and Safety Act of 2006.
The defendant, having been convicted of sexual abuse in New York, moved to Florida, but failed to register a sex offender. This occurred shortly after the enactment of the Walsh Act but before the Attorney General had promulgated rules governing whether previously convicted sex offenders were retroactively subject to the new law. The district court held that it had the power to determine whether the Walsh Act applied retroactively, held that it did apply retroactively and did apply to Madera. Reversing, the Court noted that the Act vested this power exclusively in the Attorney General. Because the Attorney General had not yet promulgated retroactivity rules, Madera could not be charged with having failed to register.

Young: Battery Involving Fluids is 4B1.1 crime of violence

In U.S. v. Young, No. 07-14780 (May 19, 2008), the Court held that a prior Florida state conviction for "Battery of a Child Involving Fluids" qualifies as a crime of violence for purposes of the career offender enhancement, USSG § 4B1.1. The Court noted that a "crime of violence" involves the use of "physical force." The Court noted that "physical force" is different from "violent force." The statute at issue requires the violator to cause the child to come into contact with bodily fluids by "throwing, tossing, projecting, or expelling" the fluids, that is, it requires a physical act, directed against a person, and the "minimal contact" of the impact of the fluids satisfies this requirement.

Newland: No ineffectiveness in failing to establish confession was coerced

In Newland v. Hall, No. 05-15981 (May 14, 2008), the Court affirmed the denial of habeas relief to a Georgia death row inmate.
The Court rejected the argument that defense counsel was ineffective for failing to introduce in evidence police threats to charge the defendant’s wife with aggravated assault, and murder, to establish that the defendant’s confession was coerced. The Court noted that the defendant waited a full day after hearing the threats before confessing, and, in addition, the wife could have been charged with a crime in connection with the murder.
The Court also rejected the argument that counsel was ineffective for failing to investigate Newland’s background, which would have helped him find mitigating evidence and avoid the death penalty. The Court declined to fault counsel for not uncovering evidence about the defendant’s childhood and neurological disorder, because the defendant himself opted not to have counsel pursue these matters. The Court also declined to fault counsel for failing to rely on these matters at sentencing, noting that counsel’s strategy of portraying the crime as a single aberrant episode was less problematic than relying on a history of disorders.

Williams: No Organizer Enhancement where Husband was not criminally responsible

In U.S. v. Williams, No. 06-15318 (May 16, 2008), the Court affirmed the convictions of a defendant convicted of fraud in connection with the unauthorized use of federal grant moneys to a daycare center, but reversed parts of the sentence.
Reviewing for plain error, the Court rejected Williams’ Double Jeopardy claim that her conviction for theft of federal funds was duplicative of her conviction for wire fraud. Applying the Blockburger test, the Court noted that unlike wire fraud, federal theft involves no use of interstate wires. Thus, the crimes have different elements.
The Court also rejected the argument that the seven counts of wire fraud were multiplicitous. The Court pointed out that wire fraud punishes separately each execution of a scheme, and the government was therefore justified in charging Williams for each time funds were wired into Williams’ account as a result of her fraud. The Court found no bad faith on the part of the government in making seven separate wire transactions.
The Court also rejected Williams’ challenge to the sufficiency of the evidence, noting the testimony of employees who were fired by Williams after they questioned her use of federal funds.
The Court rejected Williams’ claim that the jury instructions amended the indictment when they instructed the jury that bookkeepers could be considered accomplices in the crime. The Court found that in light of the evidence presented, this was not what the instructions meant.
Turning to the sentence, the Court reversed the district court’s imposition of a two-level "organizer" enhancement. The enhancement was based on the defendant’s supervision of her own husband’s participation in the theft. The Court noted that the husband was acquitted of theft, but pointed out that this acquittal of itself did not bar the wife’s sentence enhancement, because different standards of proof exist at trial and at sentencing. However, the Court found the evidence was insufficient to show that the husband was "criminally responsible" for theft or fraud.
The Court also reversed the imposition of an "abuse of trust" sentence enhancement. The Court noted that the abuse of trust enhancement requires the defendant to have been in a fiduciary relationship to the victim. Here no such relationship existed between Williams, her firm, and the government agency from which she received grants. The Court further noted that the base offense level for Williams’ fraud already accounted for her violation of her grant conditions.
The Court affirmed the imposition of an obstruction enhancement, based on Williams’ alteration of accounting records once she became aware of the government’s investigation.

Hendrix: Judge's Appearance of Bias not a basis for habeas relief

In U.S. v. Hendrix, No. 07-12117 (May 13, 2008), the Court denied habeas relief to a Florida death row inmate sentenced.
The Court rejected Hendrix’ challenge to the refusal of the state court judge to recuse himself. The Court noted that Hendrix bore the burden of showing that the presiding judge had considered matters not disclosed to the defendant. The Court added that the mere "appearance of bias" was insufficient to warrant habeas relief.
The Court also rejected the claim that trial counsel was ineffective for failing to call an additional mental health expert, pointing out that this expert wrote that the defendant committed a "calculated" murder, and did not suffer from a mental defect.
Finally, the Court concluded that undisclosed evidence was not "material" to Hendrix’ trial in view of the other overwhelming evidence against him.

Ferguson: Faretta Habeas Claim requires review of state trial transcript

In Ferguson v. Culliver, No. 07-13030 (May 13, 2008), the Court reversed the denial of habeas relief to an Alabama inmate.
The defendant claimed that the Alabama state trial court denied him his Faretta right to self-representation. In habeas proceedings, the State did not produce the transcripts of Ferguson’s trial, but instead relied on an appellate court decision which had affirmed the denial of Farretta relief. The Court held that the district court erred in merely relying on an appellate court decision in denying habeas relief. The district court should have reviewed the trial transcripts for its determination of this "fact-intensive" issue.

Padron: Criminal Forfeiture of Money Applies to Fraud

In U.S. v. Padron, No. 07-11228 (May 13, 2008), the Court affirmed the conviction and sentence of a defendant convicted of a mail fraud scheme arising out of a personal injury clinic that obtained money from insurance companies by submitting false claims.
The Court rejected the argument that an acquittal should have been directed because the defendant was entrapped. The Court relied on evidence that showed that Padron was predisposed to commit the fraud.
Turning to the sentence, the Court affirmed the district court’s calculation of the loss amount, pointing that the Guidelines hold a defendant accountable for "the full intended loss amount." The Court also rejected the argument that the district court lacked jurisdiction to enter a judgment of forfeiture with regard to money. The Court noted that criminal forfeiture applies in every case for which civil forfeiture is authorized, and civil forfeiture, in turn, applies to all "specified unlawful activity" – and fraud is listed as a specified unlawful activity.

Williams: Coca Cola Trade Secrets Theft Judgment Affirmed

In U.S. v. Williams, No. 07-12526 (March 20, 2008), the Court affirmed convictions and sentences imposed on two defendants who attempted to sell Coca-Cola trade secrets to Pepsi, in violation of 18 U.S.C. § 1832(a)(1), (3) and (5).
The Court rejected the argument that defense cross-examination of a cooperating prosecution witness was unduly limited, pointing out that defense counsel had already presented the jury with substantial evidence to draw a fair inference about the witness’ credibility, and that the witness’ further testimony would not have given the jury a different impression.
The Court also rejected the argument that the trial court unduly limited the closing argument when it instructed the jury that defense counsel’s explanation of "reasonable doubt" was inaccurate, when he compared the concept to a patient’s desire for a second opinion when told of the need to have both legs amputated.
The Court also found no reversible error in the district court’s use of his own open-heart surgery example to describe "reasonable doubt," pointing out that, after counsel objected, the court gave a curative instruction.
Turning to the sentences, the Court upheld the 96-month and 60-month above-Guideline sentences as reasonable. Emphasizing the deference now owed district court in weighing the § 3553(a) factors, the Court cited, without criticism, the district court’s reference to the harm that Coca-Cola would have suffered had the defendants succeeded in selling its trade secrets to a rival, and the danger to the United States economy these crimes pose.

Harris: Search of Cab Passenger Compartment Did not Violate 4th Amend.

In U.S. v. Harris, No. 07-13473 (May 8, 2008), the Court affirmed the denial of a motion to suppress a firearm found after a search of a taxi in which the defendant had been riding.
An Atlanta, Georgia, police officer saw Harris remove what appeared to be a handgun from bushes, and get into a taxi. The officer followed the cab, and pulled the cab over when the cab failed to use its turn signal when changing lanes. The officer searched Harris and found nothing on him. The officer then asked the cab driver for consent to search the cab, and found a .357 magnum under the floor mat. Harris, charged with being a felon in possession of a firearm, moved to suppress the firearm on the ground that the search violated the Fourth Amendment.
The Court noted that the officer had probable cause to stop the cab, because of the failure to use a turn signal during a lane change. The officer also had reasonable suspicion to search Harris’ person, as an investigatory Terry stop.
Turning to the search of the cab, the Court noted that Harris had an expectation of privacy in the passenger compartment, because he closed the door to the cab when he got out of the car. However, this expectation of privacy did not trump the cab driver’s consent to the search of the cab – a consent on which the officer reasonably relied, because Harris stayed silent, and "never expressed disagreement with the driver’s consent."
The Court also rejected Harris claim that his statements given to federal law enforcement officials should have been suppressed, because at the time he was represented by counsel in pending state proceedings, and his right to counsel had therefore attached – citing U.S. v. Burgest, 2008 WL 659550 (11th Cir. March 13, 2008).

Hunt: Affirming police officer's false report obstruction conviction

In U.S. v. Hunt, No. 06-16641 (May 5, 2008), the Court affirmed a conviction and sentence for making a false entry in a police report with the intent to impede an FBI investigation.
Hunt, a Prichard, Alabama police officer, was involved in an arrest where he threw the person to the ground, causing injury and permanent hearing loss. In his police report, however, Hunt stated (falsely) that he had been grabbed first by the person under arrest.
The Court rejected the argument that the statute of conviction, 18 U.S.C. § 1519, was unconstitutionally vague. Though the statute was passed as part of the Sarbanes-Oxley Act, its application need not be cabined to the corporate malfeasance at which the Act was targeted, so long as the plain language does not produce absurd results.
Citing the language of § 1519, the Court also rejected the argument that the statute contemplated only alterations of a pre-existing document, not, as here, the making of a false entry upon a document’s creation.
The Court also rejected a challenge to the sufficiency of the evidence on the question of whether Hunt intended to obstruct an FBI investigation. The Court noted a number of pieces of circumstantial evidence – including the fact that Hunt stuck to his false story more than a year after the incident – from which the jury could reasonably infer the intent element.
The Court rejected Hunt’s challenge to his sentence of five months imprisonment, followed by five months of supervised release, noting that the district court had noted, reasonably, the need to deter other police officers from filing false reports.

Edwards: Conspiracy Evidence Sufficient

In U.S. v. Edwards, No. 06-11643 (May 5, 2008), the Court affirmed fraud and money laundering convictions arising out of a Ponzi scheme involving investments in coin-operated payphones.
Edwards failed to renew his motion for judgment of acquittal at the close of all the evidence, as required by Fed. R. Crim. P. 29. Accordingly, the Court reviewed his challenge to the sufficiency of the evidence only for "a manifest miscarriage of justice." The Court held that the evidence was sufficient, noting that Edwards was aggressively courting investors with claims that his company was sound and profitable, when it was, in reality, "hemorrhaging money." Turning to the conspiracy conviction, the court noted that since conspiracies are "inevitably secret," they are "rarely established by direct evidence." The Court concluded that Edwards’ wife was not aware that what she was doing was illegal, and she therefore was not a conspirator. However, another senior manager at Edwards’ companies participated in the transfers of money, and inferences from his conduct sufficed to establish that he had conspired with Edwards to launder the fraud proceeds.
The Court rejected Edwards’ argument that victims of his fraud who were going to be called as government witnesses should have excluded from the courtroom during the trial under Fed. R. Evid. 615. The Court noted that the Crime Victims Act provides an exception to Rule 615 for victims, and the Court found no constitutional basis for invalidating this exception, and no abuse of discretion in the district court’s application of it.
The Court also found no "collusion" between the SEC and the United States Attorney’s Office in acquiring and sharing information about Edwards’ corporations. The Court further rejected an argument that the fraud jury instruction constructively amended the indictment because it expanded the mens rea for the offense.
The Court did not address Edwards’ challenges to his sentence because it vacated the sentence and remanded for resentencing: the district court failed to specify, as required, a sentence for each count of conviction.

Brown: Plea Voluntary Even If Court does not explain essential elements of the offense

In U.S. v. Brown, No. 05-16128 (April 29, 2008), the Court affirmed the conviction and 235 month sentence of a defendant convicted of enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).
Reviewing the issue for plain error, the Court rejected the argument that Brown’s plea was involuntary because the district court did not explain the elements of the offense. The Court noted that the omission, while "not ideal," was not plain error, since the elements of the offense were not difficult to understand from the indictment and the factual description of his conduct. The Court recognized that a less than full explanation of the elements of the offense could impair a defendant’s understanding of possible defenses, and thereby undermine the voluntariness of his plea (an understanding of possible defenses being, the Court appeared to assume, just as essential to the nature of the offense as the elements that constitute it). However, no realistic offense could have made Brown forego a plea of guilt, given their "significant weaknesses."
The Court also rejected the argument that the plea was involuntary because Brown was not told he would eventually be sentenced as a career offender. The Court decline to reach, on direct appeal, the merits of Brown’s claim that the prosecutor misled him into believing that he would not be sentenced as a career offender.
The Court also rejected an Ex Post Facto challenge to the sentencing court’s reliance on an intervening Eleventh Circuit interpretation of "crime of violence" as a basis for making Brown’s § 2422(b) conviction qualify for punishment under the harsher career offender guidelines. The Court noted that the maximum sentence set forth in the U.S. Code provides a person with sufficient notice, for Ex Post Facto purposes, as to the possible punishment, and intervening caselaw interpreting the Guidelines is therefore "immaterial" to the analysis.
The Court further rejected the argument that the sentencing court violated his constitutional rights when it relied on Ohio docket sheets for the purpose of determining the nature of a prior conviction. The Court noted that the rule limiting the types of information a court can consider to determine the nature of prior convictions is not constitutional. Further, the docket sheets here were not unclear as to the nature of Brown’s prior convictions.
Turning the reasonableness of the sentence, the Court found that the district court’s failure to discuss mitigation evidence did not mean if failed to consider this evidence. The Court found the within-Guideline sentence "reasonable." Finally, the Court rejected the argument that "pervasive bias" infected the sentencing court’s sentencing.

Moore: Sex for Contraband Conspiracy Affirmed

In U.S. v. Moore, No. 07-10326 (April 22, 2008), the Court affirmed the convictions of two correctional officers convicted of "bribery."
The Court rejected a challenge to the sufficiency of the conspiracy evidence, noting that while the government witness gave conflicting testimony, the jury was free to credit the testimony that the correctional officers agreed to participate in a "sex for contraband conspiracy."
The Court rejected defendants’ argument that the mere acts of switching guard duty to avoid detection, allowing inmate use of the telephone, allowing inmates to leave their unit at night, were not "official acts" for purposes of the illegal gratuity statute. The Court pointed out that an "official act" need not involve a violation of a statute, but could involve the mere violation of an established practice. Under this broader definition, the defendants’ acts were "official acts."
The Court also rejected the argument that there were multiple conspiracies, not a single "sex for contraband" conspiracy. The Court found no "material variance" from the indictment, noting that the defendants acts all had a "common goal," an "underlying scheme," and "overlapping arrangements." Further, a multiple conspiracy jury instruction was not required, because the evidence showed a common scheme.
The Court rejected the argument that the Court constructively amended the indictment when it specifically instructed the jury that it is a violation of an officer’s duty to provide contraband to an inmate. The Court noted that this language was largely based on the indictment and did not expand the grounds for conviction.
The Court also found no "plain error" in the jury instruction that sex is a "thing of value."

Livesay: Inadequate Explanation for sentence variance

In U.S. v. Livesay, No. 06-11303 (April 23, 2008), the Court reversed the sentence of 60 months’ probation imposed on a former controller at HealthSouth corporation, for his role in this company’s $1.4 billion fraud. The sentence reflected a downward 5K1.1 departure, based on the defendant’s substantial assistance to authorities, from the Guideline range of 78-97 months.
The Court noted that the sentencing court relied on the fact that Livesay "repudiated the conspiracy at an early time." The Court pointed out, however, that repudiation from a conspiracy is not related to substantial assistance. Hence, the sentencing court committed procedural error.
The sentencing court also committed procedural error in failing to give any explanation of its reasons for imposing a sentence of 60 months’ probation; the sentencing court failed to give any reasoning or indication of what facts justified its significant variance from the advisory Guidelines range. It also failed to discuss how its sentence would satisfy the § 3553(a) factors. This failure precluded meaningful appellate review. The district court listed the sentences received by others in the HealthSouth fraud, but did not indicate how Livesay’s culpability compared to theirs.

Velasquez: Immigration Status Not a Proper Sentencing Factor

In U.S. v. Velasquez, No. 06-16637 (April 21, 2008), the Court vacated a nine-month sentence imposed on a defendant for violation of supervised release.
The defendant pled guilty and was sentenced to time served and two years supervised release for use of a counterfeit visa for entry into the United States, in violation of 18 U.S.C. § 1546(a). While on supervised release, the defendant was arrested for driving with a suspended licence. Though recognizing the "de minimus" nature of this supervised release violation, the district court imposed the high-end guideline range sentence of nine months, because of its concern that a person in the United States illegally should not be allowed to "roam free." The district court also questioned the wisdom of immigration authorities in letting an illegal alien out of custody, on bond, while his immigration asylum application was pending.
The Court vacated the sentence, pointing out that Congress vested authority to detain removable aliens in the United States, not in the courts. "[A] judge may not impose a more severe sentence than he would have otherwise based on unfounded assumptions regarding an individual’s immigration status or on his personal view of immigration policy." http://www.ca11.uscourts.gov/opinions/ops/200616637.pdf

Harrell: Obstruction enhancement includes underlying crimes

In U.S. v. Harrell, No. 06-15410 (April 17, 2006), on a government appeal, the Court held that the sentencing court erred in declining to impose the Guidelines cross-reference enhancement for obstruction of justice, USSG § 2J1.2, with regard to obstruction that occurred "in respect to" other underlying crimes.
The defendant was convicted of obstruction of justice for attempting to convince a witness to support his version of a conversation he had with another person, which itself also involved witness tampering. At sentencing, the government claimed that the obstruction of justice sentence should be enhanced, in accord with the guideline cross-reference provision, based on the seriousness of the underlying crimes for which Harrell was being prosecuted when he obstructed justice.
The Court agreed that the Guideline enhancement should apply with respect to the underlying crimes for which the prosecution would have been obstructed had the tampering been successful, for example, if a prosecution’s witness’ credibility was successfully undermined. However, the enhancement would not apply to charges that were severed from the trial at which Harrell’s obstruction conduct was at issue. "For the obstruction of justice [enhancement] to be cross-referenced, the obstruction of justice must have had the potential to disrupt the government’s investigation or prosecution of [the] crimes."

Westry: Hearsay statement to a friend can be against penal interest

In U.S. v. Westry, No. 06-13847 (April 16, 2008), the Court affirmed convictions and vacated in part sentences for a number defendants convicted of drug trafficking morphine, methadone, oxycontin and other drugs.
The Court rejected a challenge to the sufficiency of the evidence of conspiracy. The Court rejected the claim that because the defendants were at time in competition with each other for drug suppliers or customers, they were not part of a conspiracy. The Court pointed to evidence of "interrelatedness" of the defendant’s conduct. The Court further noted that "the existence of healthy competition" did not negate supplying consumers’ demand. As to one defendant, the Court rejected a "mere presence" claim, pointing out that he accepted a cash payment from an undercover officer to pay for his drug trafficking-related travel.
The Court also rejected the claim that a hearsay statement from a cocaine addict (and eventual victim of overdose) regarding the source of his cocaine. The Court recognized that the statement was made to a friend. However, it still could be treated as a "statement against penal interest," because of the chance, "albeit slight," that the declarant’s admission that he was waiting for cocaine would subject him to severe penalties.
The Court found no error in the refusal to give jury instructions regarding the defense of withdrawal from a conspiracy. The only evidence of withdrawal was a statement that one defendant "wasn’t involved" anymore. Because withdrawal requires "affirmative action to disavow or defeat the purpose of the conspiracy," there was insufficient evidence to support a withdrawal instruction.
The Court also rejected a challenge to the Pinkerton jury instructions. The defendants had sought instructions that specified that the amount of drugs at issue, and the death of drug user, were reasonably foreseeable. The Court upheld instructions which more generally instructed the jury that a co-conspirator is responsible for others’ crimes that were "a reasonably foreseeable consequence of the conspiracy."
Turning to sentencing, the Court found no error in the application of the "death enhancement," based on the death of an addict from an overdose from an injection of methadone sold by the defendants. "Where a conspirator is involved in distributing drugs to addicts, some of which are even administered intravenously, it is a reasonably foreseeable consequence that one or more of those addicts may overdose and die."
As to one defendant, however, the Court agreed that the evidence was too "meager" to support a death enhancement, as it only showed his "presence and association" with a member of the conspiracy prior to the death of the addict. A defendant cannot be held accountable for a death that occurred prior to his entry into conspiracy.
The Court, however, affirmed the imposition of a firearm enhancement. The Court held that a firearm’s possession is a reasonably foreseeable consequence of a "long-standing operation of a drug house." In any event, any error in applying the enhancement was harmless, in light of the life sentences imposed on other bases.

Begay: DUI is not a "violent felony"

In Begay v. U.S., No. 06-11543, the Supreme Court held that a felony conviction for driving under the influence of alcohol (DUI) falls outside the scope of the "violent felony" definition, for purposes of imposing a mandatory 15-year prison term upon a felon who unlawfully possesses a firearm and who has three or more prior "violent felony" convictions.
The Court concluded that DUI is too unlike the four examples Congress listed in the "violent felony" definition, namely "burglary, arson, or extortion, or [an offense that] involves use of explosives," to indicate that Congress intended that provision to cover DUI. "[T]he statute covers only similar crimes, rather than every crime that presents a serious potential risk of physical injury to another." (Emphasis in original).
The Court found that DUI differs from the four example crimes, in that it does not involve the violence and aggressive conduct typical of them. The Court noted that a contrary definition would take in crimes "far removed . . . from the deliberate kind of behavior associated with the violent criminal use of firearms."

Mock: Attempted Murder Enhancement Requires Findings

In U.S. v. Mock, No. 06-15861 (April 14, 2008), the Court affirmed a defendant’s arson convictions, but reversed the sentence because the district court did not make explicit findings of fact to support its attempted murder enhancement.
The Court rejected a challenge to remarks in the prosecutor’s closing argument, noting that while "colorful," they did not jeopardize the fairness of the trial. The Court also rejected a variety of challenges to the trial court’s evidentiary rulings.
Turning to the sentence, the Court noted that USSG § 2A2.1 provides for a sentence enhancement for arson offenses if the offender "attempted to cause death" by first-degree murder. The trial court imposed this enhancement, without making explicit findings. The Court noted that findings are necessary to facilitate judicial review. The Court therefore vacated the sentence and remanded for resentencing.

Ellisor: Christmas Show Fraud Punished by 87 months

In U.S. v. Ellisor, No. 05-14459 (April 7, 2008), the Court affirmed the mail fraud convictions and 87-month sentence of a defendant convicted of defrauding schools and children’s parents of money paid for tickets for a non-existent "Christmas Around the World Show."
The Court rejected Ellisor’s claim that the district court violated Fed. R. Evid. 404(b) when it admitted evidence of two prior incidents, a fraudulent "Washington D.C. on Tour" show, and his non-payment of his $ 1,657 charges at Coconut Grove’s Doubletree Hotel. The first incident showed Ellisor’s "intent to defraud by promoting an illusory show," while the evidence of the unpaid hotel bill was intertwined with the proof of the government’s fraud case, occurring as it did in the weeks leading up to the dates advertised for the show.
The Court also affirmed the exclusion of evidence of Ellisor’s prior authentic shows, noting that evidence of good conduct is not admissible to negate criminal intent.
The Court rejected a challenge to the sufficiency of the evidence, finding "ample" evidence from which the jury could have convicted. "‘Christmas From Around the World’ was billed as featuring 28 foreign ambassadors, Harry Potter characters, lavish Christmas decorations, raffle prizes, and even live reindeer. When the children showed up . . . the convention center was locked and bare."
Turning to the sentence, the Court rejected Ellisor’s argument that the loss amount was less than $30,000, that schools, not parents and children, should only be counted as victims, and that he had misrepresented that the University of Miami was a sponsor. The Court also affirmed the obstruction of justice enhancement based on Ellisor’s perjurious testimony at trial.
Finally, the Court affirmed the upward variance based on the "reprehensible" offense and prior similar misconduct.

Svete: Mail Fraud Instruction Defective

In U.S. v. Svete, No. 05-13809 (March 26, 2008), the Court reversed mail fraud convictions for two defendants based on an erroneous jury instruction, but otherwise rejected the defendants’ challenges to their convictions and sentences. The case arose out of an $80 million fraud on investors in life insurance benefits.
Citing U.S. v. Brown, 40 F.3d 1218 (11th Cir. 1994), the Court rejected challenges to the sufficiency of the evidence, pointing out that both defendants had testified in their defense, and that the jury was therefore free to believe of the opposite of their testimony.
The Court, however, agreed that the mail fraud jury instruction was defective because, though directly copied from the Pattern Jury Instruction, it failed to instruct, as the caselaw provided, that a scheme was "reasonably calculated to deceive persons of ordinary prudence and comprehension." The inaccuracy impaired the defendants ability to argue that, in light of the available documentation, it was unreasonable for any prudent investor to have relied on the defendants’ contrary statements, or not to seek independent advice. The Court therefore reversed the mail fraud convictions.
The Court rejected Giglio-based challenges to the trial. A prosecution witness lied on the witness stand about not having been previously incarcerated. However, the Court found that the violation was not "material," because the defendant decided not to pursue this line of impeachment, and because other impeachment of the witness was successful, and because this witness’ testimony was otherwise corroborated by other witnesses.
Finally, the Court rejected the challenge to the determination of a loss over $80 million for sentencing purposes.

McNeil: Extraordinary Attorney Negligence Tolls AEDPA period

In Downs v. McNeil, No. 05-10210 (March 24, 2008), the Court held that equitable tolling may apply to a Florida death row inmate’s otherwise untimely federal habeas petition.
The Court recognized that a showing of "ordinary" attorney negligence would not suffice to equitably toll AEDPA’s statute of limitations. Here, however, Downs showed "extraordinary" negligence and even wilful misconduct, including an instance where an attorney lied to him about having filed a document that would have tolled the running of his limitations period. In view of the "extraordinary circumstances" presented, the Court remanded the case for an evidentiary hearing to determine whether equitable tolling applied.

Maupin: Florida nolo contendere w/ adjudication withheld counts as prior conviction

In United States v. Maupin, No. 07-03341 (March 24, 2008), the Court held that a child pornography offender’s prior Florida nolo contendere plea with adjudication withheld to Florida child pornography charges counted as a prior conviction for purposes of the sentencing enhancement under 18 U.S.C. § 2252(A)(b)(1) and (b)(2).
The statute provided for enhancements for prior convictions "under the laws of any State." Maupin argued that under Florida state law, a nolo contendere plea with adjudication withheld is not considered a conviction, and that this plea should therefore not count under the federal statute. The Court rejected this argument, holding that as it had held with respect to the federal drug statute, the meaning of the word "conviction" has a federal meaning, unless Congress specifically provides otherwise. Under federal law, a nolo contendere plea with adjudication withheld counts as a prior conviction. Thus, Maupin’s prior nolo contendere plea with adjudication withheld counted as a prior conviction for federal sentencing purposes. The Court therefore affirmed the 480-month sentence.

Devine: No further duty to consult about appeal

In Devine v. U.S., No. 07-11206 (March 20, 2008), the Court held that defense counsel was not ineffective for failing to file a notice of appeal.
The defendant pled guilty. The plea was valid. His plea included an appeal waiver. The waiver provided that the only issue he could appeal was the legality of his sentence. The low-end Guideline range sentence was legal.
The defendant claimed that counsel failed to fully inform him about the advantages and disadvantages of an appeal. The Court assumed arguendo that counsel did not fully discuss the advantages and disadvantages of an appeal, but still found no ineffective assistance of counsel. First, the factual record below showed that the defendant did not reasonably demonstrate to counsel that he was interested in appealing. Second, no rational defendant would want to appeal in these circumstances. Thus, counsel had no duty to consult further with the defendant about an appeal.

Burgest: Dual Sovereignty Precludes Suppression

In U.S. v. Burgest, No. 06-11351 (March 13, 2008), the Court rejected the defendant’s argument that statements he gave to federal investigators should be suppressed, because his right to counsel had attached in State criminal proceedings for the same drug offense, and the statements were obtained in violation of his right to counsel.
The Court recognized that the right to counsel had attached on the State charges. However, the right to counsel is offense specific, here to the State charge. The federal offenses were distinct. The Court relied on the "dual sovereignty rule," and held that the State right to counsel did not attach to the federal charges.

Stratton: Kimbrough remand

In U.S. v. Stratton, No. 06-10080 (March 13, 2008), the Court remanded a case for resentencing on Kimbrough grounds. The Court noted that the defendant had preserved the Kimbrough issue by challenging the crack/powder disparity in his appeal. Further, the district court at sentencing specifically rejected Stratton’s argument that it had the authority to consider the crack/powder disparity as a basis for a sentence reduction.

Lawhorn: Habeas relief granted on ineffectiveness grounds

In Lawhorn v. Allen, No. 04-11711 (March 11, 2008), the Court (Barkett, Wilson, Cox), affirmed a district court’s grant of habeas relief to an Alabama death row inmate, on ineffective assistance of counsel grounds.
The district court had ruled that Lawhorn was entitled to habeas relief on the ground that a confession that he gave was the product of an unlawfully long five-day detention without access to counsel. The Court pointed out, however, that the state courts had found that Lawhorn’s confession was voluntary, based on the fact that he was twice given his Miranda warning. This finding was entitled to deference.
The Court found that counsel was ineffective in waiving the giving of a closing argument during the penalty phase of the proceedings. Counsel had waived closing argument based on a misunderstanding of the rules – he thought his waiver would preclude the prosecution from making rebuttal closing. The prosecution was in fact permitted to make a rebuttal closing. The fact that counsel misunderstood the law precluded a finding that he made a sound "strategic" decision. In addition, Lawhorn was prejudiced by the failure to give a closing argument, because he had a good argument that he was a victim of "domination" by the person who made him commit the murder.

Gordon: Counsel not ineffective in failure to insist on allocution

In Gordon v. U.S., No. 05-16703 (March 7, 2008), the Court held that the defendant did not establish ineffective assistance of counsel. Gordon claimed that his counsel was ineffective for failing to object to the district court’s failure to address Gordon personally at sentencing. The Court held that even though such a failure can constitute "plain error" on direct appeal, it would not presume prejudice to the defendant in a § 2255 context. Here, the defendant did not establish prejudice.
The Court also rejected Gordon’s request for an evidentiary hearing into his ineffective assistance of counsel claim. The Court noted that it could conceive of reasonable motivations for counsel’s failure to insist on the Gordon’s right to speak up at sentencing, to wit, Gordon’s remarks "might lead the court to consider [him] even less honest than it already considered him."

Michel: 2255 motion unsigned but timely

In Michel v. U.S., No. 06-13982 (March 11, 2008), the Court held that even though an inmate initially filed an unsigned § 2255 motion, and only later filed a signed motion – after the running of the statute of limitations – the timeliness of the initial unsigned prevented his motion from being dismissed on untimeliness grounds.
The Court noted that the Rules Governing § 2255 proceedings were specifically amended to provide that a clerk should file, instead of reject, an unsigned § 2255 motion. This amendment was not in effect at the time Michel filed his motions, but it was in effect at the time the district court dismissed his motion – which was the relevant time period. The Court also noted that the Rules Governing § 2255 proceedings trumped the Federal Rules of Civil Procedure, when these two differ, and the district court therefore erred in relying on Fed. R. Civ. P. 11 in dismissing Michel’s petition.

Aviles: Withdrawal determines which Guideline manual to apply in "constant" conspiracies

In U.S. v. Aviles, No. 05-14446 (March 4, 2008), the Court, on a government appeal, reversed the district court for possibly using the wrong Guidelines manual at sentencing.
A sentencing court should apply the Guidelines manual in effect at the time of sentencing, unless use of this manual would violate the Ex Post Facto Clause (because the punishment increased after the defendant committed the offense), in which case it should use the manual in effect at the time the crime was committed. This rule can raise issues in conspiracy cases, where the crime continues over time, somewhat indefinitely. Was the defendant still involved in the conspiracy at the time of the later manual? Or did he withdraw? Can the reasonably foreseeable acts of his co-conspirators extend the conspiracy, even if he withdrew, since these acts are part of the defendant’s "relevant conduct"? Are the acts of a co-conspirator reasonably foreseeable when the conspiracy itself is sporadic?
The Court held that only when a conspiracy is "sporadic" can the cessation of one defendant’s participation cut-off the time for applying a new Guidelines manual. When (as here) a conspiracy is constant and consistent, then only withdrawal from the conspiracy will avoid application of a new Guidelines manual (under ex post facto principles). Here, the district court failed to address the withdrawal question. The Court therefore remanded the case for consideration of when the defendants withdrew from the conspiracy.

Deverso: Mistake of Age not a 2252 defense

In U.S. v. Deverso, No. 06-16048 (March 5, 2008), the Court affirmed convictions for using a minor to engage in sexually explicit conduct outside the United States for the purpose of producing a visual depiction of such conduct within the United States.
The Court found that the birth certificate of a victim in the Philippines was adequately authenticated, as a foreign public document under FRE 902(3). Here, a government agent testified that he obtained the certificate from the Philippine National Census and Statistics Office and that he had the copy authenticated and certified at the United States Embassy in Manila. The document itself was accompanied by certificates from Embassy official verifying the document’s authenticity.
The Court rejected the defendant’s argument that he was entitled to a "mistake of age" jury instruction. The Court noted that the statute contained no element requiring the defendant to know the age of the victim, and added that the Constitution did not require such an element to be included in the statute.

Alexander: Fla. 3.800(c) motion does not toll AEDPA limitations

In Alexander v. Sec. Dep’t of Corrections, No. 06-12501 (March 3, 2008), vacating its prior opinion, the Court held that a motion under Florida Rule of Criminal Procedure 3.800(c) does not toll the AEDPA limitations period. Accordingly, the Court dismissed the Florida inmate’s § 2254 petition as untimely.
The Court noted that, unlike Fla. R. Crim. P. 3.850 motions, or even 3.800(a) motions, which challenge the legality of a judgment, a 3.800(c) motion merely invoked the leniency of the court and set forth no challenge of legal error. Consequently, this was not the type of State post-conviction application which tolled the AEDPA limitations period.

Dean: Accidental Discharge Still Triggers Higher Penalty

In U.S. v. Dean, No. 06-14918 (Feb. 20, 2008) (Hull, Pryor, Moore, KM, b.d.), the Court affirmed the conviction and sentences of defendants convicted as a result of an armed bank robbery which netted them $3,642.
Rejecting the challenge to a Hobbs Act conviction based on the government’s Confrontation Clause violation in proving up the fact of FDIC insurance, the Court held that no such proof was required. For Hobbs Act violations, unlike bank robbery, proof of FDIC insured status is not a required element of the offense.
The Court further rejected the argument that a sentence should not have been enhanced under 18 U.S.C. § 924(c)(1)(A)(iii) for "discharge" of a firearm, because here the discharge was "accidental." The Court noted that § 924(c) contains no separate intent element. Though noting a Circuit split on this point, the Court held that an accidental discharge sufficed to impose the higher penalty.
Finally, the Court rejected one defendant’s argument that the sentencing court improperly counted four separate prior convictions in the criminal history score, when they should have been treated as "related cases." The Court held that any error need not be addressed because the sentencing court stated that even if its calculation were wrong it would still impose the sentence it did, this time under its § 3553(a) sentencing discretion – and the Court found that such a sentence would have been "reasonable."

Fotopoulos: Not Ineffective Not to Challenge Inconsistent Theories

In Fotopoulos v. Secretary, Dep’t of Corrections, No. 07-11105 (Feb. 17, 2008), the Court reversed the grant of habeas relief to a Florida inmate sentenced to death for two 1989 murders.
The Court rejected the fact-finding that Fotopoulos’s counsel was ineffective for allowing the state to put on inconsistent theories regarding Fotopoulos’ guilty, one which emphasized his domination of his accomplice, and one which did not. The Court found that defense counsel’s testimony indicated that he made a reasonable strategic decision on how to address the inconsistent arguments of the State – and the district court should have deferred to the fact-finding by the State of Florida on this point. Finally, no prejudice to Fotopoulos occurred, as he acknowledged his "prime responsibility" for the murders.
The Court also rejected the district court’s conclusion that the State’s reliance on inconsistent theories violated Due Process. The Court noted that the Supreme Court of the United States had not squarely held that putting on inconsistent theories violated Due Process at the time of the State court decision affirming the death sentence. Consequently, under AEDPA, the State court judgment was not "clearly contrary" to Supreme Court precedent, and deserved deferrence.

De La Garza: No Plain Error in Gov't Violation of Plea Agreement

In U.S. v. De La Garza, No. 06-13396 (Feb. 15, 2008), the Court affirmed the conviction of a defendant who pled guilty to conspiracy to possess more than five kilos of cocaine with intent to distribute, in violation of the Marine Drug Law Enforcement Act ("MDLEA").
The Court first rejected the challenge to the guilty plea based on the defendant’s breach of the plea agreement. The Court agreed with De La Garza that the government breached the agreement when it argued that his credibility at sentencing was not "credible," when it had agreed in the plea to the very version of events to which De La Garza later testified. However, reviewing the issue for "plain error," the Court found no violation of De La Garza’ substantial rights, because the district court credited De La Garza’s testimony even as it imposed the sentence it did.
The Court also rejected De La Garza challenge to subject matter jurisdiction. The Court noted that the defendant, at the plea colloquy, admitted that his vessel was without nationality, and thus established the fact sufficient to establish subject matter jurisdiction.