Mays: Johnson and Descamps apply retroactively to first habeas petition

In Mays v. U.S., No. 14-13477 (March 29, 2016), the Court held that Descamps and Johnson apply retroactively to a first-habeas petition defendant sentenced to a higher mandatory sentence based on prior convictions under the Armed Career Criminal Act (ACCA), and therefore ordered resentencing. One of Mays’ prior qualifying convictions was an Alabama third-degree burglary. In U.S. v. Howard, the Court had already held, post-Descamps, that this Alabama burglary did not qualify under ACCA’s enumerated clause. Mays was sentenced pre-Descamps. The Court found that Descamps did not announce a new rule, “but was simply reaffirming” an existing approach. Thus, under Teague v. Lane, Descamps applied retroactively, and the Alabama burglary did not qualify under the enumerated clause. Turning to whether the Alabama burglary qualified under ACCA’s residucal clause, the Court held that Johnson, which held the residual clause to be unconstitutionally vague, applied retroactively because it was a new substantive rule of constitutional law. Citing Schriro v. Summerlin, the Court noted that new substantive rules include decisions that “place particular conduct or persons covered by the statute beyond the State’s power to punish.” The Court recognized that in In re Rivero, it had held that Johnson did not apply retroactively to a defendant who filed a second and successive habeas petition. But Mays was on his first habeas petition, and therefore does not require a ruling by the Supreme Court that Johnson is retroactive. Further, Rivero found that Johnson announced a new substantive rule of constitutional law. Accordingly, Johnson was retroactively applicable to a first habeas petition.

Taylor: "Production" and "Use" of Devices are distinct

In U.S. v. Taylor, No. 14-13288 (March 28, 2016), the Court rejected the argument that the imposition of the mandatory two-year sentence for aggravated identity theft in violation of 18 U.S.C. 1028A did not preclude the imposition of an additional two-level enhancement under U.S.S.G. § 2B1.1(b)(11)(B)(i) for the “production” of an authorized access device. The Court explained that while § 2B1.6 of the Guidelines precluded the imposition of an additional Guideline enhancement for the “use” of a means of identification, this double-counting preclusion did not apply to the “production” of such a device. The Court reasoned that producing unauthorized devices creates more opportunities for prohibited conduct than mere use of a pre-existing device. Taylor’s scheme involved submitting false identities to banks in order to cause them to produce credit cards. The Court held that, in so doing, Taylor “willfully caused” the production of the credit cards, and was accountable for their “production” even though the cards were manufactured by the banks, an innocent third party.

Baston: Foreign Commerce power to apply criminal law extraterritorially is as broad as Interstate Commerce power

In U.S. v. Baston, No. 14-14444 (March 24, 2016), the Court affirmed the convictions and sentence of a defendant convicted of sex trafficking by force, and money laundering the proceeds of this sex trafficking, and, on a government cross-appeal, reversed the district court’s decision not to award restitution to an Australian sex-trafficking victim. On plain error review, the Court found no error in the district court’s response to the jury’s supplemental question during deliberations, that asked whether it would be illegal to transfer funds if prostitution is legal in Australia and money was made there by those means. The Court found that this question asked about money laundering, not sex trafficking. The district court’s answer must have been satisfactory, because the jury asked no further questions after receiving the supplemental instruction. The Court also rejected Baston’s challenge to the sufficiency of the evidence regarding whether his conduct was “in or affecting” interstate commerce. Reviewing the argument for plain error because Baston failed to raise this specific challenge in the district court, the Court found that even if Baston trafficked this victim only in Florida, his use of phones, the Internet, hotels and buses facilitated his trafficking, so his conduct was “in commerce.” Turning to the government’s cross-appeal, the Court agreed with the government that the defendant had to pay restitution to a victim even if the prostitution occurred overseas. The Court noted that in U.S. v. Bellaizac-Hurtado, it had held that the extraterritorial application of a criminal law exceeded Congress’ authority under the Offences Clause of Article I of the Constitution. But the Court noted that it might have reached a different result in Bellaizac-Hurtado if the government had relied on Article I’s Foreign Commerce Clause. “[T]he Foreign Commerce Clause provides Congress a broad power.” The Foreign Commerce Clause has at least “the same scope as the Interstate Commerce Clause.” “In other words, Congress’s power under the Foreign Commerce Clause includes at least the power . . . to regulate activities that have a ‘substantial effect’ on commerce between the United States and other countries.” Here, Congress had a “rational basis” to conclude that sex trafficking by force “even when it occurs exclusively overseas” is part of an economic class of activities that have a “substantial effect” on commerce “between the United States and other countries.” Accordingly, the extraterritorial application of the sex trafficking statute is a constitutional exercise of Congress’s authority under the Foreign Commerce Clause.

Ledford: death penalty can imposed despite "Flynn effect" on IQ test score

In Ledford v. Warden, Georgia Diagnostic and Classification Prison, No. 14-15650 (March 21, 2016), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1992 murder. The Court rejected the argument that the “Flynn effect,” which observes that IQ test scores have been rising steadily for 20 years, did not invalidate the district court’s rejection of Ledford’s argument that his IQ of 77-79 made him mentally retarded and therefore ineligible for the death penalty. The Court agreed with the district court that the “range” of Ledford’s IQ could be as high 80. Further, a district court is not required to accept and apply the Flynn effect. There is no medical consensus about the Flynn effect. The Supreme Court has not indicated how the Flynn effect should be factored into the IQ analysis.

Sammour: Affirming Identity Theft Convictions

In U.S. v. Sammour, No. 13-13962 (March 16, 2016), the Court affirmed the convictions and 115-month sentence of a defendant charged with stealing persons’ identities in order to recover fraudulent tax refunds from the Internal Revenue Service. Sammour pled guilty to the theft of public money charges, but went to trial on the aggravated identity theft charges. At sentencing, the district court denied an acceptance of responsibility sentence reduction, and departed upward from a Criminal History Category II to Category V. The Court rejected a challenge to the sufficiency of the evidence, finding evidence that showed that Sammour knew he was stealing the identity of real persons. On plain error review, the Court rejected the argument that the district court constructively amended the indictment, when it instructed the jury that a means of identification was a “date of birth” when the indictment had only charged “name and social security number” as the means of identification. The Court found no precedent in the Eleventh Circuit, or in sister circuits, squarely holding that an amendment of the “means” of committing a crime was a constructive amendment. Hence any error was not “plain.” The Court found no abuse of discretion in the district court’s decision to keep on the jury a juror who sent out a note stating: “Will we be offered the jury protection program? This reeks of Alquaida and honestly have concerns for our safety.” Turning to sentencing, the Court found no error in the district court’s decision to deny an acceptance of responsibility sentence reduction. Though Sammour pled guilty to some counts, he went to trial on others. Further, the district court found that his belated apology was entitled to little weight. The Court also affirmed the upward departure from Category II to V. A district court is authorized to assign criminal history points to unscored prior convictions and extrapolate the criminal history category that would have applied.

McCloud: Government did not prove three separate prior convictions for ACCA

In U.S. v. McCloud, No. 14-14547 (March 16, 2016), the Court found that the government did not prove that McCloud’s three prior armed robbery convictions were committed on separate occasions, and he therefore was not subject to a 15-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA). The Court concluded that although the charging documents reflected that there were three different victims, different items stolen, and three different case numbers, these pieces of information did not make it more likely than not that the crimes were committed successively rather than simultaneously. “On the face of the charging documents, it is plausible that all three victims were standing in the same location, and each simultaneously gave up the items of value in his pockets.” Moreover, “the individual case numbers themselves do not convey any information pertaining to the time or location of the offenses.” The Court also rejected the government’s argument that the incidents were separate because they involved different co-defendants. The Court noted that it was plausible that two offenses were committed simultaneously, or even that McCloud committed all three robberies simultaneously, “with varying amount of participation from his colleagues.” The Court also rejected the argument that the plea colloquy referred to one address, thus establishing that the other offenses were at other addresses. Finally, the Court rejected the government’s attempt to rely on the Presentence Investigation Report, pointing out that the defendant had objected to the specific paragraphs at issue. Once McCloud objected, the government had to present reliance and specific evidence in Shepard-approved documents to establish three separate incidents. It did not.

Castillo: Pretrial intervention participant's expectation of privacy akin to probationer's

In Castillo v. U.S. , No. 13-11757 (March 15, 2016), the Court rejected a claim that defense counsel rendered constitutionally ineffective assistance when he failed to move to suppress guns found by police during a warrantless search of Castillo’s home. At the time of the search, Castillo was on supervision subject to Florida’s pretrial intervention program. The Court analogized this status to the situation of persons on parole or on probation, who have diminished expectations of privacy. The police only needed “reasonable suspicion” to conduct a warrantless search of Castillo’s home. The police had reasonable suspicion based on the tip they received, a fax from Castillo’s former mother-in-law showing a photo of a man who appeared to be Castillo holding a gun and extending his middle finger and making a threatening statement. [Robreno, J., concurring, stated that a pretrial intervention participant’s privacy interest is not directly analogous to a probationer’s but sits somewhere between the general public and a probationer; he concurred in the result in this case because the information available to police gave them particularized suspicion sufficient to justify the search of Castillo’s house].

Osorio-Moreno: 120 month sentence for illegal reentry is not unreasonable

In U.S. v. Osorio-Moreno, No. 14-14447 (March 1, 2016), the Court rejected the argument that a 120-month sentence was substantively unreasonable for a defendant convicted of unlawful reentry after deportation, with a guideline range of 51-63-months. The Court noted that the defendant had 20 prior criminal convictions and six of these convictions were not counted in his 16 criminal history points. The Court noted that it had previously upheld large upward deviations based solely on an offender’s extensive criminal history, citing U.S. v. Shaw, U.S. v. Sanchez, and U.S. v. Rosales-Bruno. “Osorio has engaged in a life of crime, with a staggering 20 convictions, and the district court reasonably concluded that Osorio’s guideline range understated his criminal history.”