Eleventh Circuit Court of Appeals - Published Opinions

Monday, June 30, 2014

Rodriguez: Conjugal visits not material

In Rodriguez v. Sec., Fla. Dep’t of Corrections, No. 11-13273 (June 30, 2014), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for three 1984 murders. The Court rejected Rodriguez’ claim that detectives testified falsely about conjugal visits that a cooperating State witness was allowed. The Court agreed with the Florida courts that this evidence “lacked materiality.” The Court also noted the defense’s “withering cross-examination” of this witness. The Court also rejected a claimed Brady violation involving the withhold of two letters that would have cast doubt on a prosecution witness. The Court concluded that the letters were “not material.”

Friday, June 27, 2014

Lambrix: Not error to decline to appoint habeas counsel for futile claim

In Lambrix v. Sec., Fla. Dep’t of Corrections, No. 13-11917 (June 26, 2014), the Court affirmed the denial of appointment of counsel to a Florida death row inmate whose prior habeas petitions had been denied, and rejected his argument that his latest petition was not futile under Martinez v. Ryan. The Court noted that Martinez held that there was no procedural default when there was cause for a habeas petitioner’s prior failure to raise an ineffective assistance of counsel claim. Lambrix, however, did not fail to previously raise an ineffective assistance of counsel claim – he did so, unsuccessfully. For this (and other reasons) his current claim was futile, and the district court did not err in declining to appoint counsel to pursue a futile claim.

Thursday, June 26, 2014

Malone: Alleyne error is harmless

In U.S. v. Malone, No. 12-15092 (June 26, 2014), the Court affirmed the sentence imposed on a defendant convicted of drug trafficking and failure to appear at trial. Toward the end of a lengthy jury trial in1990, Malone did not show up for trial. The trial continued in his absence, and the jury convicted Malone of a drug conspiracy. Twenty-two years later, in 2012, Malone was extradited from Ecuador, and brought for sentencing for his earlier drug trafficking conspiracy, and for a failure to appear charge – to which he pled guilty. The district court imposed a 240-month mandatory minimum sentence on the 1990 drug conspiracy conviction, based on its finding that the offense involved more than 5 kilos of cocaine and therefore triggered this mandatory minimum. The district court also imposed a consecutive 22-month sentence for Malone’s failure to appear at trial. Citing Alleyne, the Court agreed with Malone that, in light of the absence of jury findings regarding drug quantity at the 1990 trial, it was error for the district court to impose a sentence based on its own findings as to drug quantity. However, the error was harmless, because Malone had stipulated at the 1990 trial to a quantity greater than 5 kilograms. The Court rejected the argument that there was a conflict of interest in representation in light of defense’s counsel representation of a co-defendant at the trial in 1990. The Court noted Malone’s failure to demonstrate any alternative defense strategy that he could have pursued. The Court rejected as “invited error” Malone’s claim on appeal that, because his punishment for his failure to appear was already accounted for by a Guidelines sentence enhancement, he should not have been subject to a consecutive sentence for this failure. The Court noted that in the trial court Malone’s counsel stated that Malone was subject to “additional” punishment on account of the failure to appear. Finally, the Court rejected Malone’s complaint about an incomplete appellate record, pointing out that he was responsible, by having stayed on the run for 22 years, for the record being lost in that long interval.

Tuesday, June 24, 2014

Insignares: Habeas Petition after new judgment is not "second or successive"

In Insignares v. Sec., Fla. Dep’t of Corrections, No. 12-12378 (June 23, 2014), the Court affirmed the denial of habeas relief to a Florida inmate convicted of attempted murder. The Court agreed with Insignares that because the State trial court entered a new sentence, and therefore a new judgment, after Insignares filed a first federal § 2254 habeas petition, his subsequent federal § 2254 habeas petition which challenged the new judgment was not “second or successive” for purposes of AEDPA limitations. Turning to the merits, the Court rejected Insignares’ ineffective assistance of counsel claim, finding the representation to be neither deficient, nor to have prejudiced his defense.

Monday, June 23, 2014

Ramirez-Gonzales: enticing a child for indecent purposes is "sexual abuse of a minor" for Guidelines purposes

In U.S. v. Ramirez-Gonzalez, No. 13-13703 (June 23, 2014), the Court rejected the argument that a defendant’s prior Georgia conviction for enticing of a child for indecent purposes did not qualify as “sexual abuse of a minor” for purposes of a 16-level enhancement under USSG § 2L1.2, for a defendant convicted of illegal re-entry into the United States. The Court explained that the Georgia offense fell within the definition of “sexual abuse of a minor” that includes “both physical and nonphysical misuse and maltreatment of a minor for the purposes of sexual gratification.” The Court rejected a substantive reasonableness challenge to the sentence, pointing out that the district court issued a considerable downward variance to negate the potential sentencing disparities that could have resulted from the 16-level enhancement on the facts of the case, and the resulting 52-month sentence was below the Guidelines range of 70-87 months, and well below the 20-year statutory maximum.

Doughtery: Flight in Colorado one week after Georgia robbery not "immediate"

In U.S. v. Dougherty, No. 12-16540 (June 20, 2014), the Court reversed the imposition of a six-level sentence enhancement for assaulting an officer during “immediate flight” from an offense, but otherwise affirmed the 428-month sentence on defendants who went on a Georgia crime spree, and fled to Colorado, where they fired on chasing police before being apprehended with cash from a bank robbery, and firearms and ammunition, in the trunk of their vehicle. The Court noted that USSG § 3A1.2 authorizes the imposition of a six-level enhancement if a defendant is accountable for the assault on a law enforcement officer during “an immediate flight” from an offense. Dougherty, however, assaulted an officer in Colorado one week after a bank robbery in Georgia. His assault therefore was no during an “immediate flight” from the robbery, and the six-level enhancement did not apply. The Court rejected the challenge to the imposition of a two-level sentence enhancement based on substantial risk of death or serious bodily injury during flight under § 3C1.2. The Court pointed out that this enhancement (unlike § 3A1.2) did not require immediacy. And each defendant could held accountable for this conduct: one defendant drove recklessly, another fired shots at pursuing police officers, and a third pointed a pistol at an officer. The Court rejected one defendant’s argument that his sentence should not have been enhanced under § 3C1.1 on account of his attempt to flee from jail in Colorado. The Court found the enhancement applicable because the escape occurred before trial or sentencing. Finally, the Court rejected substantive reasonableness challenges to the 428-months sentences, noting the “compelling” reasons given by the district court for its upward departure: the numbers of firearms involved, the number of civilians put at risk, and the defendants’ significant criminal history.

Thursday, June 19, 2014

Houser: Affirming Health Care Fraud Conviction based on failure to provide nursing home services

In U.S. v. Houser, No. 12-14302 (June 19, 2014), the Court affirmed the conviction and sentence of a defendant charged with committing health care fraud by failing to provide required services at nursing homes. The Court found that it need not address whether the concept of “worthless services” is unconstitutionally vague when used to define health care fraud, because it was affirming the conviction based on “the nursing facilities’ complete failure to provide some necessary services.” The Court found that House “sought reimbursement from Medicare and Georgia Medicaid for required services – pharmaceutical, diagnostic, medical and dietary – that simply were not provided.” The Court rejected the argument that the government failed to show Houser’s “willfulness” in failing to pay payroll taxes. “Although Houser made frequent visits [to the IRS] the evidence reveals that those visits were an effort to stave off further investigation and prosecution, as opposed to an effort to correct an innocent mistake.” The Court similarly rejected Houser’s claim that his failure to file a federal tax return was not willful.

Vandergrift: Rehabilitation not valid basis for sentence on revocation of supervised release

In U.S. v. Vandergrift, No. 12-13154 (June 18, 2014), the Court affirmed a 24-month term imposed upon revocation of supervised release. Recognizing a Circuit split on the issue, the Court held that it was not plain error for the district court to rely on § 3553(a) factors like the seriousness of the offense when revoking supervised release, even though these factors are not included in the list of factors a district court should consider when deciding whether to revoke supervised release. The Court agreed with Vandergrift that the district court committed Tapia error when it considered rehabilitation as a basis for imposing a 24-month sentence. The Court noted that Tapia “prohibits any consideration of rehabilitation when determinng whether to impose or lengthen a sentence of imprisonment.” On plain error review, however, the Court found that this error did not affect Vandergrift’s substantial rights, because the sentencing court’s “primary considerations were for the safety of the public and deterring others from similar conduct.”

Boyd: Latest 2255 motion not second or successive

In Boyd v. U.S., No. 11-15643 (June 18, 2014), the Court (Tjoflat, J. & Moore & Schlesinger, b.d.), the Court reversed the dismissal of a federal inmate’s motion under 28 U.S.C. § 2255. Boyd had filed several prior motions under § 2255, but the Court explained that his latest one was not “second or successive” and therefore limited by AEDPA, because they were filed after one of his prior state convictions was vacated, and therefore raised an argument he could not have raised before. In addition, two of Boyd’s prior § 2255 motions were not reviewed on the merits, but dismissed (erroneously) for being second or successive. These prior § 2255 motions therefore did not make the latest one second or successive.

Serrapio: Affirming modification of probation for defendant convicted of threatening to kill the President

In U.S. v. Serrapio, No. 12-14897 (June 18, 2014), the Court affirmed the constitutionality of a modification of conditions of probation imposed on a defendant convicted of having threatened to shoot the President of the United States. The district court originally imposed a sentence of probation that included four months home confinement with electronic monitoring. Serrapio did not violate the conditions of probation, but was quoted in a news article stating that his ordeal had been “pretty funny” and that the attendance at his rock band’s show benefitted because people came out to see the kid who threatened to kill the President. The district court thereupon modified the terms of probation to include 45 days in a halfway house, and a year of home confinement with electronic monitoring. On appeal, the Court held that the propriety of the new 45 days of halfway house condition was moot, because Serrapio had already served this term. Turning to the increase in the home confinement from four months to one year, the Court held that because Serrapio had not finished this term his appeal of this was not moot because theoretically he could ask for a refund of the cost of electronic monitoring. The Court held that the modification of probation was valid, because the statute authorized the modification. The modification did not violate Double Jeopardy, because Serrapio did not have a legitimate expectation of finality in the 4-month term, since the district court had the authority to modify it. The Court rejected the argument that the modification of probation violated Serrapio’s First Amendment rights because it was based on statements he had made. The Court noted that the statements suggested that Serrapio “did not really understand the gravity of his offense.”

Wednesday, June 18, 2014

Henry: Hall v. Florida is not retroactive

In In re; John Ruthell Henry, No. 14-12623 (June 17, 2014) (2-1) (Martin, J., dissenting), the Court denied the application of a Florida inmate, sentenced to death on account of a 1985 murder, for a second or successive federal habeas petition, because the Supreme Court’s recent decision in Hall v. Florida, which held that a State could not set an IQ of 70 as a hard cut-off for purposes of determining death penalty eligibility, announced a new rule of constitutional law which was not retroactively applicable. The Court pointed out that the Supreme Court in Hall made no mention of retroactivity, and held that Hall does not place a class of individuals beyond the state’s power to execute, but “merely provides new procedures for ensuring that States do not execute members of an already protected group.” The Court also pointed out that Henry’s application lacked merit, because he could not point to any IQ test yielding a score of 75 or below.

Tuesday, June 17, 2014

Cubero: Affirming 151-month child pornography sentence

In U.S. v. Cubero, No. 12-16337 (June 11, 2014), the Court affirmed the 151-month sentence imposed on a defendant who pled guilty to one count of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and two counts of possession of child pornography, in violation of § 2252(a)(4)(B). The Court rejected Cubero’s Guidelines “double counting” argument. Cubero argued that because the base offense level for his § 2252(a)(2) distribution offense already took account of the act of “distribution,” he should not have been subject to a two-level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(3)(F), for “distribution.” The Court pointed out that the guideline offense level applied to “receiving,” or “reproducing” child pornography, other means of violating § 2252(a)(2). Hence, it was “appropriate” for the Sentencing Commission to establish a two-level enhancement for distribution, and no double counting occurred. The Court summarily rejected the argument that Cubero should have received a two-level reduction for an offense that was limited to the receipt or solicitation of child pornography. The Court pointed out that Cubero used a peer-to-peer file-sharing network to distribute child pornography. The Court also rejected Cubero’s substantive reasonableness challenge to his sentence. The Court noted that the sentencing court relied on a significant number of factors under § 3553(a), including the “horrific” titles of the child pornography files, and that “relevant differences existed between Cubero’s case and the cases cited by Cubero as comparable ‘downward variance’ cases.”

Monday, June 16, 2014

Folk: Affirming Felon in Possession conviction

In U.S. v. Folk, No 12-15126 (June 12, 2014), the Court affirmed a conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The Court did not address Folk’s argument that the firearms found in his residence fell outside the scope of the warrant because it sustained the seizure of the firearms on the alternative ground that the firearms were in plain view during a SWAT team’s protective sweep of a home during a search for narcotics. The Court also rejected Folk’s Batson challenge to the government’s peremptory strike of an African-American juror, crediting the trial court’s finding that the government has a “sincere” reason for striking the juror from the pool, namely that the prosecutor had trouble hearing the juror’s answers, and the jury had a friend who was on multiple years’ probation. Finally, the Court rejected Folk’s challenge to the sufficiency of the evidence of possession, pointing out that Folk routinely used the firearm to go hunting, and continued to assert his ownership of the firearm during conversations from jail.

Friday, June 13, 2014

Davis: Fourth Amendment protects cell site location informaton

In U.S. v. Davis, No. 12-12928 (June 11, 2014), the Court held that “cell site location information” – cell phone tower-based information about where a person is located when he places or receives a cell phone call – is within a cell phone subscriber’s reasonable expectation of privacy, and that the government violates the Fourth Amendment when it obtains this information from a cell phone provider without a warrant. The Court analogized cell site location information to the tracking of a person’s whereabout through a GPS, which the Supreme Court held in Jones was subject to Fourth Amendment protection. The Court held, however, that in Davis’ case the police relied in good faith on a federal statute, 18 U.S.C. § 2703, that permitted obtaining cell site location information based on a court order without probable cause. Citing U.S. v. Leon, the Court therefore did not apply the exclusionary rule to the cell phone records. The Court recognized that the prosecutor engaged in improper bolstering during closing argument when he told the jury that a witness told the same story to the jury that “he has told me one hundred times.” But the Court noted that the trial judge instructed the jury to ignore these comments, and the jury is presumed to follow a judge’s instructions. Turning to sentencing, the Court agreed with Davis that the seven-year portion of his 1,941 month-sentence for multiple Hobbs Act and firearm violations was invalid, because the jury made no finding of “brandishing,” as recently required by Alleyne. The Court noted that the evidence that Davis brandished a firearm was not overwhelming. The Court rejected Davis’ claim that his sentence was cruel and unusual, in violation of the Eighth Amendment. The Court noted that Davis’ crimes were “numerous and serious.” Finally, the Court rejected Davis’ claim that there was insufficient evidence of his advance knowledge that an accomplice would use a firearm during one of the robberies, as recently required by Rosemond v. U.S. for aiding and abetting liability. The Court noted that the jury could infer that Davis “saw the gun in the car” as he and his accomplices were driving to commit a robbery, and could also have inferred knowledge based Davis’ participation in prior robberies, or that he assisted in planning this robbery.

Tuesday, June 10, 2014

Rodriguez: Eleventh Circuit Declaration of Emergency contemplated by Congress

In U.S. v. Rodriguez, No. 12-14629 (June 5, 2014), the Court (Anderson, Moody & Schlesinger, b.d.), held that General Order No. 41 of the Chief Judge of the Court, entered on December 30, 2013, declaring that an emergency exists during which the determination of cases may be conducted by panels composed of a majority of judges who are not members of the Court, was “clearly contemplated by Congress in 28 U.S.C. § 46(b).” The Court reasoned that, like the illness of a judge that makes him unavailable, the vacancies on the Circuit (the Circuit is authorized to have 12 circuit judges but has only eight, with four vacancies), together with the Circuit’s “heavy case load,” qualifies as an “emergency contemplated by Congress.” The Court cited the “precedent” of two prior Fifth Circuit emergencies declared in like circumstances.

King: Affirming 1,062 month sentence for string of armed robberies

In U.S. v. King, No. 12-16268 (June 9, 2014), the Court affirmed convictions for a string of armed robberies, and a sentence of 1,062 months. The Court rejected the argument that the government failed to present sufficient evidence that the gun King brandished during the robbery was capable of firing a projectile, noting that victims of the robberies testified that the weapon was “thrust directly in their faces.” The Court rejected the argument that the jury should have been given an instruction that “people may have greater difficulty in accurately identifying members of a different race.” While recognizing that in some cases such a “cross-racial identification” instruction might be appropriate, the Court found that the facts did not warrant this instruction in this case, noting that King did not cross-examine any of the witnesses to determine whether they had difficulty making cross-racial identifications. The Court agreed with King that, in light of the Supreme Court’s decision in Alleyne, it was error to convict King of brandishing a firearm in violation of § 924(c) without submitting the “brandishing” issue to the jury. However, the error was harmless in light of the “extensive evidence that king brandished a firearm.” The Court rejected the argument that the issue whether King’s firearm convictions were “second or subsequent” should have been presented to the jury. The Court found that, under Almendarez-Torres, it was proper for the district court to decide this question. Finally, the Court rejected King’s challenge to the reasonableness of his 1,062-month sentence, noting the district court’s observations about his lack of remorse and his likelihood to recidivate.