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.
Friday, June 27, 2008
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.
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.
Monday, June 23, 2008
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.
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.
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.
Friday, June 06, 2008
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."
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."
Wednesday, June 04, 2008
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.
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.
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