Chafin: Fowler has overruled Veal

In U.S. v. Chafin, No. 14-10160 (Oct. 28, 2015), the Court affirmed a conviction of a Georgia sheriff, based on checks he drew from the prison commissary account to buy lottery tickets, for federal program embezzlement in violation of 18 U.S.C. § 666, but reversed a conviction for obstructing justice by hindering the communication of information about a potential federal offense to federal officials in violation of 18 U.S.C. § 1512(b)(3). The Court rejected the argument that there was insufficient evidence that Brooks County, Georgia received more than $10,000 in federal funds, an element of § 666. The Court interpreted the statute to exclude “bona fide salary” type payments by the federal government to an entity in the usual course of business. But the federal payments to Brooks County were not salary payments, but covered operating costs associated with the witness-advocate position in the sheriff’s office. Turning to the obstruction of justice conviction, the Court noted that in Fowler v. U.S. (2011), the Supreme Court held that the government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer. Reviewing for plain error, the Court found that Fowler overruled prior Circuit precedent, U.S. v. Veal. Consequently, the district court’s use of this prior Veal standard was reversible error. Had the district court applied the Fowler standard, the trial would have ended in an acquittal.

Espinosa: Unsuccessful motion for belated appeal does not toll one-year limitations period

In Espinosa v. Sec., Dep’t of Corrections, No. 14-10581 (Oct. 23, 2015), the Court held that the filing of an unsuccessful state petition for belated appeal of the denial of post-conviction relief does not toll the one-year statute of limitations for filing a federal habeas petition. The Court recognized caselaw that held that the filing of a petition for belated appeal that is granted by a state appellate court tolls the one-year limitations period. But here, the state appellate court denied the motion for a belated appeal, which put Espinosa in a “materially different” procedural posture.

Hernandez: Double Jeopardy doesn't preclude both forfeiture and restitution

In U.S. v. Hernandez, No. 15-11202 (Oct. 19, 2015), on a government appeal, the Court reversed the district court’s denial of the government’s civil forfeiture motion. The district court had denied forfeiture on the ground that it had also ordered Hernandez to pay restitution. But the Court noted that the district court not offset the amount of forfeiture by the amount of restitution, because both forfeiture and restitution were statutorily mandated. The Court rejected Hernandez’ argument that Double Jeopardy precluded ordering duplicative restitution and forfeiture. The Court noted that restitution is intended to make victims whole, while forfeiture is intended to punish a defendant by transferring his ill-gotten gains to the Department of Justice. In addition, restitution here was to the Social Security Administration, an entity separate from the Department of Justice.

Diveroli: Ovewhelming evidence defeats claim of ineffective plea advice

In Diveroli v. U.S., No. 14-11576 (Oct. 9, 2015), the Court rejected a § 2255 claim of a defendant convicted of fraud, who claimed that his attorney miscalculated his potential sentencing exposure and thereby caused him to plead guilty when instead he would have gone to trial. Diveroli claimed that his attorney told him that his sentencing exposure was 168-210 months, based on a loss amount up to $30 million, when in fact the exposure was 63-70 months under a correct loss amount, and that he would have proceeded to trial had it not been for the incorrect advice. The Court first dismissed the § 2255 appeal by Diveroli’s corporation, pointing out that § 2255 relief is limited to a prisoner in custody, and a corporation cannot be held in custody. Turning to Diverolis’ claim, the Court found that overwhelming evidence established that Diveroli was guilty of making false statements to conceal the Chinese origin of weapons he was selling to the United States Army. His defense was “patently frivolous.” Therefore, “Diveroli could not establish that it would have been rational to reject [the] plea agreement given its favorable terms and his near-certain conviction.”

Brantley: Misprison conviction affirmed

In U.S. v. Brantley, No. 13-12776 (Oct. 9, 2015), the Court affirmed the conviction of a defendant convicted of misprision of a felony, based on having concealed her boyfriend’s crime of being a felon in possession of a firearm (in an incident in which her boyfriend, Morris, shot and killed two police officers). The Court rejected Brantley’s claim that she was selectively prosecuted. A claim of selective prosecution requires a showing that it was motivated by a discriminatory purpose, and that similarly-situated individuals were not prosecuted. The Court rejected Brantley’s reliance on the fact that another person who hosted Morris was not prosecuted, pointing that two were aware of the crime at different times, and Brantley’s affirmative steps to conceal the crime through text messages and phone calls. The Court also noted the prosecution’s discretion to prosecute Brantley, pointing out that her prosecution “publicized the fact that those who conceal evidence about the capital murder of a police officer will be prosecuted.” The Court rejected the argument that her Fifth Amendment right to remain silent was violated by her prosecution, because she was free to remain silent about her own offense of fleeing the scene of a crime. The Court pointed out that Brantley was prosecuted for “affirmative acts of concealment,” not mere silence, acts such as hiding in a car and calling and texting Morris in order to conceal his crime. The Court rejected Brantley’s challenge to the sufficiency of the evidence, pointing out that she concealed the car that linked Morris to the unlawful possession of the murder weapon. The Court rejected Brantley’s challenge to the insufficiency of the jury’s special findings, pointing out that a general verdict of guilt sufficed.

Carpenter: No plain error in imposing lifetime computer restriction

In U.S. v. Carpenter, No. 14-13177 (Oct. 7, 2015), the Court affirmed a 97-month term of incarceration followed by a lifetime term of supervisory for a defendant convicted of possession of child pornography. Citing its prior decision in U.S. v. Cubero, the Court held that the Sentencing Commission’s 2012 Report critical of the child pornography guidelines did not heighten a district court’s need to explain why it was imposing a within-Guidelines sentence, or require a downward variance. The Court held that Carpenter “invited” the district court to impose a lifetime, having “repeatedly asked the court to impose a life term.” The Court noted that Carpenter did not say that a life term of supervised release was appropriate only if the sentencing court granted a downward variance. The Court added that this argument would have been unavailing because the length of a prison term has “no bearing” the need for subsequent supervision. In addition, on appeal, a defendant cannot complain of the result of a strategic decision. The Court also rejected Carpenter’s challenge to a ban on his possessing a computer or adult pornography. The Court noted that Carpenter did not raise this objection at sentencing, so the issue was reviewed for “plain error.” The Court noted that no prior case had prohibited a lifetime ban on the usage of a computer (outside the context of employment). There was therefore no plain error. There also was no precedent barring the restriction of all forms of pornography. The Court noted that the Circuits are split on this issue, and therefore there can be no plain error. In a footnote, the Court pointed out that the district court could shorten or terminate Carpenter’s supervised release.

Johnson: Upward variance justified by prior robberies

In U.S. v. Johnson, No. 14-13874 (Oct. 5, 2015), the Court affirmed the 102-month sentence of a defendant convicted of bank robbery. The Court affirmed the imposition of a six-level Guideline enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(B) for a firearm having been “otherwise used” during the robbery, instead of just a five-level enhancement for “brandishing” the firearm. After brandishing the pistol at the tellers, Johnson pointed the pistol at the tellers and demanded money without dye packs. Shortly thereafter, upon receiving the money and discovering that the tellers did include dye packs, Johnson stated: “I said I will kill you.” Therefore, Johnson’s use of the firearm to both implicitly and explicitly threaten the tellers amounted to “otherwise use[]” of the firearm. The Court also rejected a substantive reasonableness challenge to the upward variance from a Guideline range of 70-87 months to a sentence of 102 months. The district court reasonably found that the advisory guidelines range understated the seriousness of Johnson’s recent criminal history, which included participation in a string of eight armed robberies in a 14-month period, in which victims were held at gunpoint and feared for their lives. Johnson participated in these robberies within a couple of years of his release from federal prison on a 71-month sentence. Although Johnson was not convicted of these robberies, the district court was free to consider them under 18 U.S.C. § 3661.

Puentes: Rule 35(b) does not authorize reduction of restitution

In U.S. v. Puentes, No. 14-13587 (Oct. 5, 2015), the Court held that a district court lacks authority to reduce the amount it had ordered in restitution when it grants a reduction in sentence to a cooperating defendant pursuant to Fed. R. Crim. P. 35(b). The Court noted that, as its title suggests, the Mandatory Victims Restitution Act mandates restitution. Further, 18 U.S.C. § 3663A(a)(1) makes restitution mandatory “[n]otwithstanding any other provision of law.” In addition, § 3664(o) lists the ways a restitution order can be modified; Rule 35(b) is not on the list. The Court also noted that a “correction” of sentence under Rule 35 is not the same thing as the “reduction” of a sentence.

Denson: No 2255 relief for career offender

In Denson v. U.S., No. 14-10211 (Sept. 30, 2015), the Court rejected the claim of a movant under 28 U.S.C. § 2255 who claimed that his counsel was ineffective for failing to claim that his prior conviction for possessing a sawed-off shotgun in violation of Fla. Stat. § 790.221(1) did not qualify as a “crime of violence” under the career offender Guideline. The Court that this argument would have been “meritless,” because it ran counter to the express language of the Guidelines. Further, the argument would not have found support in the Supreme Court’s Begay decision, because Begay interpreted the Armed Career Criminal Act, and the Guideline commentary differed from this statute because it designated the possession of a short-barreled shotgun as a crime of violence. Finally, the Supreme Court’s recent decision in Johnson, which held that the residual clause of ACCA was unconstitutionally vague, did not affect Denon, because Matchett recently held that vagueness doctrine does not apply to the advisory sentencing guidelines, and because counsel is not ineffective for failing to predict new developments in the law.

Maddox: Accomplice's gun use was reasonably foreseeable

In U.S. v. Maddox, No. 14-15064 (Sept. 30, 2015), the Court affirmed the imposition of sentence enhancements on a defendant convicted of aiding and abetting an attempted armed robbery in violation of the Hobbs Act, based on the brandishing of a firearm by an accomplice, and injury caused by this accomplice. The Court reasoned: “once one concludes that the defendant knew that [his accomplice] was armed with a gun, it makes perfect sense that he could also reasonably anticipate that [the accomplice] might well show that gun to the person whom he was trying to force to hand over the store’s money. After all, isn’t that the primary purpose of brining a gun to a robbery? As to the injuries suffered by the store manager, . . . the defendant could also reasonably anticipate that his admittedly erratic co-conspirator might well use that gun, in some way, on anyone who thwarted his efforts to obtain the sought-after money. Thus . . . the district court’s determination regarding the reasonable foreseeability of the above acts does not give rise to a definite and firm conviction that a mistake has been made.”

Martin: Evidence Sufficient to support mortgage fraud

In U.S. v. Martin, No. 14-11019 (Sept. 30, 2015), the Court affirmed convictions for fraud arising out of fraudulently obtained mortgage loans, affirmed the sentence but reversed the restitution award. The Court rejected Martin’s challenge to the sufficiency of the evidence, noting her participation in a scheme involving her father’s submission of fraudulent income statements to lending institutions. The scheme “affected” a financial institution, even if a lender suffered no loss (by selling the loan to another institution), because the fraudulent statements resulted in “an increased risk of loss through default.” Turning to sentencing, the Court rejected Martin’s challenge to the denial of a minor role sentence reduction. The Court noted Martin recruited her father to participate in the scheme. With regard to restitution, the Court held that a “successor lender” can qualify as a “victim” for restitution purposes. The successor lender purchased the loan without an awareness of its true value, due to the fraud. The Court, however, recognized that the district court did not consider the actual purchase price that the successor lender paid for the loans. If this purchase price was less than the price at which the successor lender sold the loan, the successor lender would actually make a profit. The Court therefore remanded the case for recalculation of the restitution to be awarded, if any.