Oscar: No Abuse of Discretion in Seating Alternate Jurors After Deliberations Began

In United States v. Oscar, No. 14-14584 (Dec. 20, 2017) (Hull, Jordan, Boggs), the Court affirmed two defendant's drugs/firearm convictions but vacated one of their ACCA sentences.

First, the Court concluded that the district court's answer to a jury note misstated the law of possession by allowing the jury to convict him of constructive or joint possession without having knowledge of the firearm.  The district court's initial instruction accurately explained the law of actual/constructive possession, and the supplemental instruction must be viewed in context.  Furthermore, the court's instruction of constructive possession -- as when the defendant has both the power and intention to take control of the firearm -- did not remove the knowledge requirement, because a defendant must necessarily have knowledge of a firearm in order to have an intention to take control over it later.

Second, the Court rejected a defendant's argument that the government committed prosecutorial misconduct by introducing evidence that another drug dealer was deceased.  That fact was relevant, the Court concluded, to explain why he was not charged or testifying at trial, even though he facilitated all of the defendants' crimes.  And any prejudice was mitigated by a curative instruction making clear that the defendants had nothing to do with the death.  The Court also found no misconduct by characterizing a defense witness as a liar given her inconsistent testimony.

Third, the Court rejected the defendants' arguments that the court erred in giving an Allen charge, dismissing a juror, and seating an alternate juror.  The Court found that the Allen charge was not coercive in substance because it was the pattern instruction; nor was its timing coercive, because it was given in response to a juror's comments indicating that the deliberations had stalled.  That the deliberations continued for several more days, and the jury ultimately acquitted one defendant of two counts, reflects its lack of coercive effect  The Court also found no abuse of discretion in dismissing a juror because, while courts should be cautious about doing so, this juror stated that she was biased, criticized the system, became emotional, and admitted that she could not follow the law.  Last, the Court concluded that the court did not err by replacing that juror with an alternate instead of allowing deliberations to proceed with 11 jurors.  Although the jury had already been deliberating for two days, and substitution after deliberations is not favored, the Court concluded that there was no abuse of discretion in light of the court's initial instructions and post-substitution instruction to begin deliberations anew.  In addition, the newly constituted jury deliberated for nine more hours and acquitted a defendant of two counts, reflecting a proper deliberation, and the court actually substituted two alternate jurors which theoretically may have decreased the chances of conviction.

Fourth, the Court found no abuse of discretion in denying one defendant's motion to sever because all the defendants shared a criminal network, and any potential spillover effect regarding drug crimes was mitigated by the court's two cautionary instructions, and the undercover agent's testimony that this defendant did not try to sell him drugs.  And the fact that the jury convicted one defendant of some crimes but not others reflects the jury's individual examination of each crime.

Finally, the Court vacated one of the defendant's ACCA sentence because it was based on Florida burglary, which is not a violent felony under circuit precedent.

Castaneda-Pozo: Upholding Substantial Financial Hardship Enhancement Where Bank Fraud Made Victims Insecure in Basic Life Necessities

In United States v. Castaneda-Pozo, No. 16-16031 (Dec. 19, 2017) (per curiam), the Court upheld two challenged sentencing enhancements in a bank fraud conspiracy.

First, the Court concluded that the district court did not clearly err by finding that the defendant was responsible for the scheme's entire intended loss amount.  The defendant testified that he was not aware of the scheme's relevant conduct, but the district court credited the contrary testimony of his co-conspirators.  Even though those co-conspirators had previously lied to investigators, the district court was free to credit their testimony over the defendant's.

Second, the Court concluded that the district court did not clearly err by finding that five or more victims of the scheme suffered substantial hardship under Amendment 792.  Although the Court had never before interpreted that provision, it relied on opinions from the Seventh and Eighth Circuits focusing on the economic situation of the victim.  In this case, several of the victims were required to repay $400-800 in rent payments, and because the stolen checks were submitted near the rent deadline, some of the victims had to borrow money to pay the rent and two were threatened with eviction.  The Court disagreed with the defendant that this amount to mere "hardship" rather than "substantial hardship."  Although each victim's economic loss might not seem great, the defendant's actions made them insecure in life's basic necessities, which constituted substantial hardship.

Johnson: District Courts Must Consider 3553(a) Factors When Denying Motions for Early Termination of Supervised Release

In United States v. Johnson, No. 17-12577 (Dec. 15, 2017) (Tjoflat, Hull, Julie Carnes) (per curiam), the Court concluded that the district court abused its discretion by summarily denying the defendant's motion for early termination of supervised release under 18 U.S.C. 3583(e)(1).

Relying on its 3582(c)(2) precedents, the Court made clear that the district court must consider the relevant 3553(a) factors when denying a 3583(e)(1) motion, and the record must reflect that the district court actually considered those factors in order to permit meaningful appellate review.  In that case, the Court concluded that the record was devoid of any such consideration, because the court summarily denied the motion without explanation.  In the motion, he explained that, after obtaining Johnson relief, he had over-served by 11 years and had successfully re-integrated himself into the community in the year since his release.  The Court rejected the government's speculative argument that the district court implicitly considered the factors because it had presided over the defendant's trial/sentencing more than 20 years earlier.  Nor could any such consideration be inferred from the defendant's 3583(e)(1) motion, because it made no mention of the factors and the government was not ordered to respond.  Accordingly, the Court found an abuse of discretion, and vacated and remanded for further consideration.

Nerey: Affirming Medicare Fraud Convictions and 60-Month Sentence Over Various Challenges

In United States v. Nerey, No. 16-13614 (Dec. 12, 2017) (Hull, Jordan, Boggs), the Court affirmed the convictions and sentence in a Medicare fraud case.

First, the Court found the evidence sufficient to support his convictions for conspiracy to defraud the US and by receiving kickbacks.  After recounting the "overwhelming" evidence against him, the Court rejected his argument that the evidence was insufficient because four co-conspirators were cooperating witnesses with the government.  Their testimony, even if not corroborated, was sufficient to support a conviction.  And, in any event, it was corroborated by a substantial paper trail and forensic analysis of bank accounts.

Second, the Court rejected the defendant's argument that the prosecutor engaged in misconduct that shifted the burden of proof.  He identified five instances of alleged misconduct, but only one incident -- where the prosecutor told the jury at closing that the defendant "can't explain" an FBI analyst's chart -- potentially shifted the burden.  However, the court sustained an objection to it, provided multiple curative instructions during closing, and the government presented overwhelming evidence of guilt.

Third, the Court concluded that the district court did not abuse its discretion by denying the defendant's motion to interview a juror.  When the jury returned its verdict, a juror wore a T-shirt stating "American Greed," which was also the name of a TV program relating to white collar crime.  The defendant argued that the shirt, which was promoted and sold on the internet with the idea that you can "show the world that you're no sucker," demonstrated his intent to make a statement and influence his fellow jurors based on an outside influence.  The Court agreed that an interview was not required because the defendant failed to lay out the questions he sought to ask or establish that the shirt was in fact linked with the TV program.  And, even if there was a connection, wearing that shirt did not prove his inability to serve as an impartial juror or follow the court's instructions.

Fourth, the Court upheld the admission of Rule 404(b) evidence.  The Court found that some evidence of the defendant's involvement with other home health care agencies was inextricably intertwined with the evidence in this case -- showing how he became involved in the agencies and why they trusted him -- and thus was not subject to Rule 404(b).  Additional evidence of the defendant's involvement as a patient recruiter was relevant to the broader conspiracy and thus relevant.  And evidence of a phone call where the defendant discussed "breaking [a man's] head" if he was a confidential informant was admissible because it went to his specific intent to engage in the conspiracy.  In any event, the Court found any error harmless in light of the overwhelming evidence of his guilt.

Finally, as to his 60-month sentence, the Court rejected his argument that the court miscalculated the Guidelines by making him responsible for the entire amount of the improper benefit conferred on the home health care agencies, which was $2.3 million.  He argued that he should be responsible only for the $250K he received in kickbacks, not for the amount fraudulently billed for the entire conspiracy.  Applying clear error, the Court rejected that argument because the defendant was significantly involved in the overall conspiracy, and his kickbacks were made possible by the conduct of his co-conspirators, which was reasonably foreseeable.

Baptiste: Diversionary Disposition to Withheld Adjudications Get One Criminal History Point under 4A1.1(c), not Two Points Under 4A1.1(b)

In United States v. Baptiste, No. 16-10781 (Nov. 28, 2017) (Rosenbaum, Wilson, Titus), the Court held that the district court incorrectly calculated the defendant's criminal history category and therefore vacated the sentence.

On appeal, the parties framed their arguments around whether a Florida court's imposition of a sentence of "198 days time served," referring at least predominately to the defendant's time in immigration custody, qualified as a "prior sentence of imprisonment" under 4A1.1(b) (warranting two points).  However, the Court found it unnecessary to reach that issue, because circuit precedent established that his conviction warranted only a single point under 4A1.1(c), since adjudication had been withheld.  While there was an exception to that rule for diversionary dispositions, that exception applied only to 4A1.1(c), not 4A1.1(b).  Therefore, he could not have received two points under the latter provision.  And, while he did receive a single point under 4A1.1(c) under the diversionary exception, that single point changed his criminal history category, the Court vacated the sentence and remanded for re-sentencing.

Alicea: New York Certificate of Disposition Sufficient to Prove Prior Conviction

In United States v. Alicea, No. 16-17545 (Nov. 9, 2017) (Ed Carnes, Tjoflat, William Pryor) (per curiam), the Court upheld the calculation of the defendant's guideline range.

First, agreeing with two other circuits, the Court held that a New York certificate of disposition was sufficient evidence to establish that the defendant had a prior serious drug offense.  The Court rejected his assertion that the certificate was insufficient because it was signed by an unidentified court clerk and mistakenly transposed the numbers of his birthday.

Second, and for purposes of calculating his criminal history score, the Court rejected his assertion that the government failed to provide reliable evidence to prove his three New York drug convictions.  The Court already addressed the argument with regard to one of the convictions.  With regard to the other two, it was undisputed that both convictions bore an identification number identical to Alicea's.  And while the arrests in those cases were made under different names, those names were known aliases of the defendant.  The Court alternatively concluded that any error was harmless, because his criminal history score would have remained the same in light of other convictions not challenged on appeal.

Davis: Alabama Sexual Abuse by Forcible Compulsion Does Not Satisfy ACCA's Elements Clause

In United States v. Davis, No. 16-10789 (Nov. 7, 2017) (Ed Carnes, Rosenbaum, Higginbotham), the Court "reluctantly" held that the Alabama offense of first degree sexual abuse by forcible compulsion did not satisfy the ACCA's elements clause.

The Court first found that the Alabama first-degree sexual abuse statute was divisible on its face, enumerating two separate crimes: sexual abuse by forcible compulsion, and sexual abuse of a person incapable of consent.  The defendant's plea colloquy revealed that he had been convicted of the former.  The Court, however, rejected the defendant's further argument that sexual abuse by forcible compulsion was itself divisible: although there are three ways that a defendant could engage in forcible compulsion, those were means, not elements, because the jury did not need to agree on which the defendant committed.'

Surveying Alabama law, the Court then concluded that sexual abuse by forcible compulsion did not necessary require the use of violent force under Curtis Johnson.  That was so because case law in Alabama made clear that one could commit the offense merely where an authority figure implies a threat of disciplinary action against a child, and not all such disciplinary actions involve violent force.  The Court noted that, although the defendant did not cite the key Alabama decision in the district court, he had sufficiently preserved his objection to the prior conviction, and a party does not forfeit an issue merely by failing to cite a specific case supporting that issue.  In a final footnote, the Court noted that its decision was consistent with the en banc decision in Vail-Bailon because, in that case, the defendant was relying on far-fetched non-violent hypotheticals that had never been prosecuted, whereas Alabama did actually prosecute sexual abuse involving authority figures threatening children.  Also, unlike this case, there was no state supreme court decision indicating that the state would apply to the non-violent scenarios.

Judge Rosenbaum concurred with the exception of the majority's final footnote discuss Vail-Bailon.  She reiterated her disagreement that the non-violent scenarios posited in Vail-Bailon were far-fetched, and that there was no state supreme court decision in that case supporting such an application.

Burgess: Court May Not Sua Sponte Invoke 2255-Waiver Provision Where Government Fails To Do So

In Burgess v. United States, No. 15-12045 (Nov. 6, 2017) (Rosenbaum, Julie Carnes, Schlesinger), the Court held that a district court is not permitted to sua sponte invoke a 2255-waiver provision in a plea agreement to dismiss a 2255 motion where the government fails to raise that defense in its response.  The court limited its holding to collateral-waiver provisions. 

Judge Carnes concurred, agreeing with the majority's conclusion, but emphasizing the narrowness of the opinion.  She pointed out that nothing prevents a district court from sua sponte directing the parties to address the waiver issue before the government responds.  And the government may seek to amend its response to belatedly add a waiver defense, subject to the court's discretion.

Longoria: Substantive and Conspiracy Drug Distribution Convictions Can Occur on Separate Occasions for ACCA Purposes

In United States v. Longoria, No. 16-17645 (Nov. 1, 2017) (Tjoflat, Marcus, Jordan) (per curiam), the Court upheld the defendant's ACCA sentence.

The Court found that the defendant's serious drug convictions occurred on separate occasions.  To reach that conclusion, the Court held that a drug distribution offense may occur on a separate occasion from an overlapping conspiracy to distribute that drug.  In that case, the Court relied on Shepard documents to find that the substantive and conspiracy convictions were clearly defined and occurred on separate occasions.

The defendant's remaining arguments were foreclosed by binding precedent.  Specifically, the defendant argued that the dates of his prior convictions were non-elemental facts that could not be considered under Shepard, but that argument was foreclosed by Weeks.  Second, and relatedly, the Court held that there was no Fifth or Sixth Amendment violation by determining that the convictions occurred on separate occasions.  Third, and finally, the binding precedent foreclosed any argument that his 922(g) conviction was unconstitutional under the Commerce Clause.

Mathews: Failed Drug Test Does not Categorically Preclude Reduction for Acceptance of Responsibility

In United States v. Mathews, No. 16-11191 (Oct. 30, 2017) (Hull, Jordan, Gilman), the Court considered three Guideline calculation issues, and it ruled in the defendant's favor on one.

First, the Court upheld the application of the enhancement in 2J1.2(b)(3) for altering a substantial number of records, or, alternatively, altering essential or especially probative records.  The Court upheld the increase under the latter option, because the defendant altered a medical patient's records from the day of his death, which was essential to and obstructed the VA's investigation.  The Court found irrelevant  the defendant's subjective intent as to why he altered the records; it mattered only that he selected those records to destroy or alter.

Second, the Court upheld the application of the vulnerable-victim enhancement in 3A1.1(b)(1).  The victim was 76 years old and recovering from heart surgery, and it was irrelevant whether the defendant "targeted" the patient based on those infirmities; it required only that the defendant knew or should have known that the victim was vulnerable.  The Court further rejected the defendant's argument that the only victim harmed by his computer and record-related convictions was the United States, not the patient.  It emphasized that a person can qualify as a victim even if the defendant's conduct exposes that person to a risk of harm that was reasonable foreseeable.  The defendant's conduct met that standard and qualified as relevant conduct.

Third, the Court found that the district court erred by believing that a failed drug test precluded a reduction for acceptance of responsibility as a matter of law.   The Court noted that the Guidelines did not include any conduct that categorically precludes a defendant from receiving a reduction.  The Court could not find the error harmless because it reduced the defendant's guideline range.  Accordingly, it vacated the sentence and remanded for the limited purpose of allowing the court to determine whether a reduction was warranted.

Dixon: Florida Battery by Strangulation is a Crime of Violence under the Elements Clause

In United States v. Dixon, No. 17-10503 (Oct. 23, 2017) (Marcus, Jordan, Rosenbaum), the Court, without holding oral argument, held that Florida battery by strangulation under Fla. Stat. 784.041(2)(a) was a crime of violence under the elements clause.

This offense prohibits intentionally impeding the victim's normal breathing/blood circulation by applying pressure on the throat or neck or by blocking the victim's nose or mouth, and creating a risk of great bodily harm.  The Court found that, based on the plain language of the statute, this offense could not be committed without violent force -- that is, force capable of causing physical pain or injury.  The Court found that several non-violent hypothetical violations offered by the defendant -- including temporarily placing a pillow over a spouse's nose/mouth, removing a spouse's sleep apnea mask, or sitting on a spouse's chest -- were either "implausible" or would not actually violate the statute.  Other hypotheticals offered -- such as holding a spouse's head under water by applying pressure, and sitting in a spouse's chest and placing a hand over their mouth -- would require violent force.

George: Plain Error for Failing to Permit Allocution Before Imposing Sentence

In United States v. George, No. 16-14812 (Oct. 6, 2017) (Hull, Jordan, Gilman), the Court concluded that the district court did not clearly err by applying the firearm enhancement in USSG 2D1.1(b)(1) and premises enhancement in 2D1.1(b)(12), but did commit plain error by not allowing the defendant to allocute before it pronounced sentence.

As for 2D1.1(b)(1), the Court concluded that the enhancement was proper, because the defendant possessed a loaded firearm behind the reception area of a salon used as a front for his criminal activities.  Even though the criminal activities occurred in the back room of the salon, the government proved that the firearm was "present" at the location where he ran his criminal activities, and the defendant did not meet his burden to prove that it was "clearly improbable" that the gun was connected to the criminal activities. 

As for 2D1.1(b)(12), the Court applied a totality of the circumstances test adopted by other circuits to determine whether the defendant "maintained" the premises for drug trafficking.  The evidence supported the conclusion that a "primary purpose" of both the salon and an apartment was for drug distribution.  Thus, the Court upheld the enhancement.

As for allocution, the Court concluded that, merely by asking if there was "anything further from the other side," the district court did not fulfill its Rule 32 obligation to address the defendant personally in order to give him a chance to speak.  Relying on its recent decision in Doyle, the court found the error plain, observing that Rule 32 required the court to give the defendant a chance to speak before (not after already) imposing sentence, and the Court presumed prejudice under Doyle because he was not subject to a mandatory minimum sentence and thus could have varied downward.  The Court distinguished a former Fifth Circuit decision upon which the government relied.  Accordingly, the Court vacated the sentence and remanded for allocution only.

Green: Florida Felony Battery is a Violent Felony

In United States v. Green, No. 14-12830 (Sept. 29, 2017) (Julie Carnes, Jordan, Robreno), the Court revised its earlier panel opinion from December 2016 in light of the recent en banc decision in Vail-Bailon. 

Relying on Vail-Bailon, it held that the defendant's Florida felony battery conviction satisfied the elements clause.  The panel removed its earlier holding that the "touching or striking" component of Florida battery law was divisible, and that the defendant's offense involved a striking under the modified categorical approach.  That discussion was no longer necessary in light of Vail-Bailon's categorical holding.  The remainder of the original panel opinion was unmodified; the summary of that original opinion can be found here: http://defensenewsletter.blogspot.com/2016/12/green-harmless-rule-404b-errors.html

Griffith: Evidentiary Hearing Required on IAC Claim Alleging Failure to Research Drug Quantity Determination

In Griffith v. United States, No. 15-11877 (Sept. 26, 2017) (Ed Carnes, Rosenbaum, Dubina), the Court concluded that the district court erred by failing to hold an evidentiary hearing a 2255 motion alleging ineffective assistance of counsel.

The motion alleged that trial counsel was ineffective by failing to argue that some waste materials in the drug manufacturing process should not have been included as a “mixture or substance” in the drug quantity determination.  After reviewing the case law on that subject in depth, it concluded that, accepting the allegations as true, counsel was deficient for failing to research circuit precedent on the issue--namely, whether certain liquids used to make methamphetamine were "usable" and thus countable.  The Court also concluded that this deficient performance was prejudicial because the drug quantity determination raised the guideline range and triggered a mandatory minimum penalty, and there was nothing in the record indicating that these errors did not affect his sentence.   In footnote 14, the Court said that this conclusion was consistent with the recent decision in Beeman, because, if his allegations were proven and he faced an erroneously high guideline range, then he would have likely received a lower sentence.  After an extended discussion, the Court found it unnecessary to address the applicability of Molina-Martinez to the 2255 context.

Beeman: Initial 2255 Motion Bringing ACCA/Johnson Claim Fails to Meet Burden of Proof to Show that Sentencing Court Relied on Residual Clause

In Beeman v. United States, No. 16-16710 (Sept. 22, 2017) (Julie Carnes, Edmondson, Kathleen Williams), the Court held that an initial 2255 movant bringing an ACCA Johnson claim failed to meet his burden of proof, because he could not prove that it was more likely than not that the sentencing court relied on the residual clause, as opposed to another clause. 

As an initial matter, the Court agreed that the 2255 motion was in part timely under 2255(f)(3). His motion alleged that his prior conviction for Georgia aggravated assault was no longer a violent felony, both because it did not satisfy the elements clause after Descamps and because it did not satisfy the residual clause after Johnson.  Although the Court found that the Descamps aspect of that claim was untimely, it found that the Johnson aspect was timely.

However, it affirmed on the ground that the movant could not meet his burden to show that the sentencing court had relied on the residual clause.  The Court relied heavily on the burden of proof in 2255 proceedings being on the movant, and it refused to place that burden on the government merely because sentencing courts did not specify the clause on which they relied.  To meet the burden of proof on a Johnson claim, the movant must show that it was more likely than not that the sentencing court relied on the residual clause.  Where the record is inconclusive in that regard, or where it is just as likely that the court relied on the residual clause as on another clause, then the movant cannot meet his burden.  This is a fact-specific question in each case.  In that case, the sentencing record was silent, and there was no precedent at the time of sentencing holding or suggesting that the prior conviction qualified only under the residual clause.  In that regard, the Court rejected the movant's argument that the residual clause had served as a default for many statutes.  In effect, the Court adopted the earlier dicta in Moore over the earlier dicta in Chance, but applied that reasoning in the context of an initial (not successive) 2255 motion.

Judge Williams dissented.  She opined that a movant can meet his burden under Johnson to show that he was sentenced under the residual clause by showing that his ACCA enhancement could not have been properly sustained on any other clause.  Because the prior conviction in that case likely did not satisfy the elements clause, she found that he had met his burden of proof.  She concluded: "I fear that the practical effect of today's opinion is that many criminal defendants like Beeman who were, in fact, sentenced under a constitutionally infirm statute will be denied their right to seek relief to which they may very well be entitled by the holdings of the Supreme Court."

Williams: Upholding 6am Search Pursuant Arrest Warrant and as a Valid Protective Sweep

In United States v. Williams, No. 16-16444 (Sept. 20, 2017) (Tjoflat, Hull, William Pryor) (per curiam), the Court affirmed the denial of the defendant's motion to suppress.

First, the Court concluded that the search of an outbuilding adjacent to the defendant's residence was lawful, because the search was a reasonable entry pursuant to an arrest warrant for the defendant.  The totality of the circumstances supported the agents' belief that the defendant lived on the property, either in the main residence or in the outbuilding (both were possible living spaces), and that he was present in one of those two buildings at the time the warrant was executed (since his car was there and it was early in the morning).

Second, the Court alternatively concluded that the search of the outbuilding, while the defendant was being arrested in the main residence, was a valid protective sweep.  The outbuilding was a separate structure 20 feet away, there was noise indicating that drug distribution activities might be occurring on the property, and there were three cars parked in the driveway, suggesting that more people might be on the premises and pose a danger.

Finally, the Court, applying plain error, rejected the defendant's argument that an arrest warrant executed at approximately 6am was invalid.  The agent testified that the warrant was not executed before 6am, the beginning of daytime hours under Rule 41.  And, in any event, even if the warrant was executed a few minutes before 6am, there was no evidence that the agents did do so deliberately or that his arrest would not have otherwise occurred.  Thus, any technical non-compliance with Rule 41 would not require suppression.

Masino: Indictment Sufficiently Alleged Federal Gambling Offense Based on Florida Bingo Statute

In United States v. Masino, No. 16-15451 (Sept. 7, 2017) (William Pryor, Ed Carnes, Moore), the Court reversed the dismissal of an indictment charging a violation of the federal gambling statute.

The issue was whether an indictment alleging a violation of Florida's bingo and gambling statutes sufficiently alleged an element of the federal gambling statute--namely, that the business is an illegal gambling business, which turned on whether it "is a violation" of state law.  The Court concluded that it did, because there were at least some violations of Florida's bingo statute that could render the business an illegal gambling business under federal law.  For example, the business would be illegal if it allowed charities to sponsor the event without their direct involvement, or if it did not return all bingo proceeds to the players.  The Court therefore did not address whether Florida gambling statutes could serve as a basis for upholding the indictment.

One defendant cross-appealed regarding the court's failure to dismiss the count of the indictment in its entirety.  The Court, however, declined to exercise its discretion to consider that cross appeal under the doctrine of pendant appellate jurisdiction.

Focia: Rejecting Second Amendment Challenge to 922(a)(1) and (a)(5), and Upholding "Alternative Sentence"

In United States v. Focia, No. 15-15653 (Sept. 6, 2017) (Ed Carnes, Rosenbaum, Dubina), the Court affirmed the convictions and sentence for dealing firearms without a federal license, in violation of 18 U.S.C. 922(a)(1)(A), and selling firearms to unlicensed residents of other states, in violation of 18 U.S.C. 922(a)(5).

The defendant challenged the sufficiency of the evidence on his 922(a)(5) convictions on two grounds.  First, he argued that the government failed to prove that he and the transferee were not residents of the same state.  But the Court identified various pieces of circumstantial evidence suggesting that he resided in Alabama, while the transferees resided in other states.  Second, he argued, for the first time on appeal, that the government failed to prove that he lacked a firearms license.  But the Court, applying a deferential standard, found that it did, relying on the defendant's own testimony.

The defendant challenged the jury instructions for the 922(a)(1)(A) conviction, arguing that the pattern instruction given allowed him to be convicted for conduct not criminalized under the statute.  The Court found that the statute was designed to criminalize the selling of guns as a business (whether as the sole means of income or as a side business), but not to criminalize sporadic selling or selling merely to improve or modify a personal collection.  The defendant's motivation was the test.  The Court agreed with the defendant that, by omitting the exclusion of "hobbyist" firearm dealing, the pattern instruction would allow the jury to convict a defendant for non-criminalized conduct.  It recommended that the instruction be modified to clarify that hobbyist activities are excluded.  However, the Court found the error harmless in this case, because the evidence reflected that the defendant was not a mere hobbyist, but rather was a savvy dealer who sold weapons on the Dark Web for profit.

Next, the defendant challenged the constitutionality of 922(a)(1) on the ground that it represented a "prior restraint" on his Second Amendment rights by criminalizing unlicensed firearms dealing.  The Court rejected that argument, finding that the First Amendment "prior restraint" doctrine does not apply to the Second Amendment, joining five other circuits.  

The Court also rejected the defendant's constitutional challenge to 922(a)(5), finding it less burdensome on Second Amendment rights than other statutes it had previously upheld.  This statute prohibited only the transfer of a firearm from an unlicensed person in one statute to an unlicensed person in another state, which, unlike other statutes previously upheld, did not completely prohibit the possession or acquisition of a firearm.  

Finally, the defendant raised three challenges to the calculation of his guideline range, but the Court found it unnecessary to address them.  Because the district court ruled that, even if those challenges were successful, he would have imposed the very same 51-month sentence, any guideline error was harmless.  That was so even though the 51-month sentence would have required an upward variance if the guideline challenges were valid.  The Court found that this alternative sentence was sufficiently justified and substantively reasonable under the 3553(a) factors.

Jeri: Failure to Continue Airport Trial in Light of Late Disclosure was Harmless Error

In United States v. Jeri, No. 16-11418 (Sept. 5, 2017) (Hull, Marcus, Clevenger), the Court upheld the defendant's drug-trafficking convictions.

The defendant first challenged the district court's denial of a motion to continue when the government, on the morning of trial, turned over a video taken at the airport showing the drugs removed from the defendant's luggage.  The Court agreed that the denial of a continuance was error and counseled more patience in the future.  But it found that the defendant "has not come close" to showing substantial or specific prejudice, because the video only showed the drugs after they were removed from the luggage.  Thus, they did not show that the drugs were removed only from the defendant's checked bags, as opposed to his carry on bag, and the video did not otherwise exculpate him.

The Court rejected the defendant's remaining arguments.  It rejected a Brady challenge to the government's late disclosure of the video on the ground that it was neither exculpatory nor material to the defense, and it rejected a due process challenge to the exclusion of the video at trial on similar grounds.  

The Court rejected the exclusion from evidence of controlled calls between the defendant and his handler on the ground that they were hearsay, irrelevant, and not admissible under the rule of completeness.  And, in any event, any error was harmless.  

The Court next rejected the defendant's argument that the court limited his cross examination of two government witnesses, finding that the exclusion was proper on hearsay grounds, and any error was harmless in any event.  

Next, the Court rejected the argument that a law-enforcement lay witness crossed the line into giving expert testimony by drawing on his experience interviewing drug couriers, and, again, it found that any error was harmless.  The Court also rejected the argument that the witness had opined on the ultimate issue in the case by opining that the defendant's interview answers were not truthful.  The Court also rejected an argument that a government witness impermissibly testified about drug-courier profiles, but rather testified only about street value, quantities, methods, and general drug mule techniques, etc..., and did not testify about the defendant's knowledge.

The Court rejected the argument that the court erred by giving a deliberate ignorance instruction.  It found that ample evidence supported the instruction.  It also found ample evidence of actual knowledge, and the court was permitted to give both instructions.

Finally, in light of the rulings above, the Court rejected the defendant's cumulative error argument.

Vail-Bailon: Florida Felony Battery is Categorically a Crime of Violence Under the Elements Clause

In United States v. Vail-Bailon, No. 15-10351 (Aug. 25, 2017) (Ed Carnes, Tjoflat, Hull, Marcus, William Pryor, Julie Carnes), the en banc Court -- in a closely divided 6-5 opinion -- held that Florida felony battery categorically qualifies as a crime of violence under the elements clause.

The majority found that Florida felony battery categorically met the definition of "physical force" in Curtis Johnson.  The Court concluded that, because Florida felony battery requires the causation of great bodily harm, it was necessarily "capable" of causing pain or injury.  It therefore necessarily required physical force under Curtis Johnson.  In so concluding, the Court rejected the argument that "physical force" under Curtis Johnson required force "likely" to cause pain or injury.  And the Court rejected that argument that Florida felony battery could possibly be committed by only a slight touching.  Under this reasoning, it would appear that Florida aggravated battery would also qualify under the elements clause.  Notably, however, the Court did not decide whether the Florida battery statute was divisible, since it found that felony battery was categorically a crime of violence, even when committed by a touching.  This may leave open the possibility of challenging simple battery, battery on a law-enforcement officer, and any other simple-battery offenses that do not require the causation of great bodily harm.  The Court also found that its conclusion complied with Leocal because felony battery required an intentional touching.

Judge Wilson, joined by Judges Martin, Jordan, Rosenbaum, and Jill Pryor, dissented.  He argued that Curtis Johnson's definition of "physical force" required a certain "degree of force," not a "capability" of causing pain or injury. He emphasized that even the slightest touching has the capability of causing pain or injury, and Curtis Johnson already held that such conduct did not satisfy the elements clause.  And he concluded that Florida felony battery could indeed be committed by a mere touching, the exact same degree of force required to commit simple battery.  The only difference with felony battery is that the mere touching unintentionally happens to cause great bodily harm; but he found that this result element was irrelevant because it does not change the degree of force necessary to commit the offense.

Judge Rosenbaum, joined in part by Judges Martin and Jordan, issued a separate dissent, adding some arguments bolstering Judge Wilson's dissent.  In addition, and writing only for herself, she argued that the unintentional causation of bodily harm element of the felony battery statute also did not satisfy the "use" prong of the elements clause under Leocal, Castleman, and Voisine, because, although it required an intentional act, it did not require an intent to injure or engage in an act that has a substantial likelihood of injuring another.

White: Full Court Declines to Rehear En Banc Whether Alabama Cocaine Trafficking is a "Serious Drug Offense" Under ACCA

In United States v. White, No. 14-14044 (Aug. 24, 2017), the full Court voted not to rehear en banc a case presenting the question whether Alabama cocaine trafficking was a "serious drug offense" under the Armed Career Criminal Act.

Judge Martin, joined by Judge Jill Pryor, dissented from the denial of rehearing.  In a lengthy opinion, she argued that "mere possession" offenses do not qualify as a serious drug offense for two reasons.  "First, it forces federal judges to make empirical determinations that are beyond our institutional competence.  And second, it directly contradicts the Supreme Court's interpretation of the ACCA in Taylor, because it causes federal judges in this circuit to rely on widely varying state labels and policy judgments when they impose ACCA sentences.  The result is that the exact same conduct can support ACCA sentences that are more (or possibly less) harsh based solely on the state where the conduct occurred."

Tejas: "Special Rule" in Commentary Presuming Number of Victims for Mail Theft Inapplicable Where Evidence is to the Contrary

In United States v. Tejas, No. 16-16336 (Aug. 23, 2017) (Martin, Rosenbaum, Anderson) (per curiam), the Court affirmed in part and reversed in part the defendant's 366-day sentence following a conviction for mail theft.

The defendant first argued that the court erroneously enhanced his sentence under U.S.S.G. 2B1.1(b)(2)(A)(i) based on the number of victims.  The Court agreed.  Although there was "special rule" in the commentary presuming that a mail theft offense involves at least 10 victims where, as here, the offense involved a postal delivery vehicle, the Court found that applying that rule in this particular case would conflict with, and was therefore trumped by, the plain language of the text of the Guideline, which focused on the actual number of victims.  That was so because the evidence in that case made clear that there were, at most, only two victims--the postal employee and the intended recipient of the stolen package.

The Court rejected the defendant's remaining sentencing arguments.  It found that the court properly applied the enhancement for theft "from the person of another" under 2B1.1(b)(3), because the defendant pushed the postal employee aside to obtain a package that was still within arms' reach of the employee.  The Court found that the court properly applied an enhancement under 3A1.2 for targeting a government officer or employee, which requires that the defendant be motivated by the employee's status, because the case was sufficiently analogous to an earlier case involving the robbery of a postal employee where he demanded money orders.  Finally, the Court found that the court properly refused to apply the two-level reduction for acceptance of responsibility because, although the defendant was acquitted of robbery and assault, the court found by a preponderance of the evidence that he did push the postal employee, and the defendant affirmatively insisted that he had not.

Blake: District Court Had Authority Under All Writs Act to Order Apple to Bypass iPad Security Features

In United States v. Blake, No. 15-13395 (Aug. 21, 2017) (Ed Carnes, Fay, Parker), the Court upheld the defendants' child sex trafficking-related convictions and sentences.

First, the defendants argued that the district court should have severed child sex trafficking charges from sex trafficking by coercion charges.  The Court upheld the court's failure to do so, finding that a significant part of the latter charges were also relevant to the former charges, and there was not sufficient prejudice because both crimes were inflammatory.

Second, the defendants argued that that district court's order requiring Apple to help bypass an iPad's security features exceeded the court's authority under the All Writs Act.  The Court initially found that the defendants had both Article III standing (because the evidence gathered was used to convict them) and Fourth Amendment standing (because they had an expectation of privacy in the iPad).  The Court also assumed without deciding that suppression would be the proper remedy, and that they had prudential standing to raise a third party's (Apple) rights.  The Court, however, concluded that the order did not exceed the court's authority under the All Writs Act, applying the multi-factor test from the Supreme Court's 1977 decision in United States v. N.Y. Telephone Company.

Third, the Court rejected a challenge to warrants used to search emails and a Facebook account.  The Court found that the search warrants were supported by probable cause, and that the email warrants satisfied the particularity requirement. The Court, however, expressed serious doubt that the Facebook warrants satisfied the particularity requirement, because they unnecessarily encompassed every kind of activity on the account. But the Court ultimately did not decide the issue.  Because the issue was a close one, the Court concluded that the good-faith exception to the exclusionary rule applied.

Fourth, a defendant argued that one of the victims should not have been permitted to testify about her difficult childhood.  The Court rejected argument, finding it both relevant under Rule 401, because it made the fact that she ran away from home to prostitute herself more probable.  And there was no unfair prejudice requiring exclusion under Rule 403.

Fifth, a defendant argued that the evidence was insufficient that she trafficked one of the victims, because she did not have a sufficient opportunity to observe that the victim was a minor.  The Court rejected that argument, finding that they had five or six interactions, and one of those interactions was considerable.

Sixth, the Court rejected the defendants' sentencing arguments.  One defendant argued that he should not have received the enhancement in U.S.S.G. 2G1.3(b)(2)(B) for unduly influencing a minor to engage in prohibited sexual conduct, because the minors contacted him, not the other way around.  The Court rejected that argument because the commentary provided for a presumption of undue influence where the defendant is more than ten years older than the victim, and the defendant did not overcome that presumption. The Court also rejected the defendants' impermissible double-counting argument under U.S.S.G. 2G1.3(a)(2) and 2G1.3(b)(4), finding that they were punished only once for the fact that sexual conduct did in fact occur. Lastly, the Court rejected the defendant's substantive reasonableness arguments, as they both received downward variances.

Mathurin: No 8th Amendment Violation for 685-Month Sentence Imposed on a Juvenile

In United States v. Mathurin, No. 14-12239 (Aug. 18, 2017) (Julie Carnes, Wilson, Hall), the Court affirmed the defendant's conviction and 685-month sentence for multiple armed robbery and carjacking crimes committed while a juvenile.

As to the conviction, the Court first rejected the defendant's various suppression challenges, finding that: 1) there was probable cause to support the defendant's arrest; 2) because the defendant was advised that no promises or negotiations would be made in a meeting, statements made during that meeting were not made in the course of plea negotiations and thus were not inadmissible under Rule 410; 3) inculpatory statements made by the defendant after his arrest were voluntary, even though there was a delay in notifying his mother of his arrest, the waiver form he signed did not indicate he had a right to attorney prior to questioning, and he was questioned alone after he was appointed an attorney; and 4) there was no basis to suppress eyewitness identifications because there was no evidence to show that the procedure was unduly suggestive.

Second, the Court found that the district court properly dismissed the defendant's original indictment without prejudice under the Speedy Trial Act, because the defendant's offenses were extremely serious, the government did not intentionally delay the filing of the indictment, and the defendant would suffer only minimal prejudice from the delay.

Third, the Court found that the second indictment was not barred by the statute of limitations.  By statute, where an indictment is dismissed after the statute of limitations expires, the government may return a new indictment within six months of the dismissal.  Here, the second indictment was filed ten days after the dismissal.

Fourth, the Court found no reversible evidentiary error by allowing the prosecution to fully recount the robberies, including the involvement of a firearm, even though the defendant was acquitted of accompanying 924(c) counts during an earlier trial.  The Double Jeopardy Clause did not prohibit probative evidence that is otherwise admissible simply because it is related to criminal conduct for which the defendant has been acquitted.  The Court also found that there was no reversible prosecutorial misconduct at closing.

As to the sentence, the Court rejected the argument that the defendant's 685-month sentence violated the Eight Amendment under Graham v. Florida.  In a lengthy analysis, the Court assumed that Graham did apply to a term-of-years sentence exceeding one's life span, but then concluded that, factoring in good time credit, the defendant had an actuarial life expectancy that would precede his possible release date, even using the lower life-expectancy for African American males.  Thus, there was a possibility of release before expiration of his sentence.

The Court also rejected the defendant's argument that the sentence was vindictive, imposed as punishment for successfully appealing his initial conviction (for which he received a 492 month sentence), in violation of North Carolina v. Pearce.  The Court emphasized that the re-sentencing occurred before a different judge, and therefore Pearce's presumption of vindictiveness did not apply, and the defendant could not show actual vindictiveness.

Judge Wilson issued a one-sentence concurring opinion: "I concur in the result."

Oskamac: Upholding Government's Non-Disclosure of FISA-Related Materials

In United States v. Oskamac, No. 14-15205 (Aug. 18, 2017) (Hull, Marcus, Martin), the Court affirmed the defendant's terrorist-related convictions and 480-month sentence for attempting to use weapons of mass destruction against U.S. persons or property and possessing an unregistered firearm.

The defendant raised four arguments on appeal.  First, and primarily, he argued that the court erred by denying him access to certain FISA materials -- namely FISA applications, supporting documents, DOJ certifications, and resulting FISA Court orders -- in order to determine whether the searches and surveillance was legal.  After outlining the relevant statutory provisions, as well as the deferential "minimal scrutiny" standard of review for FISA certifications, the Court rejected the defendant's argument, which primarily sought access to the certifications.  The Court, like the district court, conducted an in camera and ex parte review of the undisclosed FISA materials and evidence, and concluded that all of the legal requirements were satisfied.  The Court concluded that the district court did not abuse its discretion by not disclosing those materials and evidence to the defense.

Second, the Court also rejected the defendant's related argument that denying him access to the FISA materials violated the Confrontation Clause.  Although the defendant did not raise the argument below, and devoted minimal space to it on appeal, the Court exercised its discretion to address and reject it.  In doing so, it found that the defendant received wide latitude to confront and cross examine witnesses, and his Confrontation Clause rights were not violated by his inability to look for potentially favorable evidence in pretrial discovery.  "The ability to cross-examine witnesses does not include the power to require the pretrial disclosure of all information that might be potentially useful in contradicting unfavorable testimony."

Third, the defendant argued that the prosecutor's misstatement during closing -- that the jury should not consider a lack of evidence (such as FBI reports and surveillance logs) -- prejudiced him and denied him due process.  The court rejected that argument because, although the prosecutor's statement was incorrect, the court mitigated the prejudice by curatively instructing the jury that reasonable doubt may arise from a lack of evidence.  And the Court found that the misstatement was both isolated and likely accidental.

Fourth, the defendant argued that the government engaged in sentencing factor manipulation because the government introduced machine guns and explosives to him.  After emphasizing the difficulty of establishing such manipulation, the Court found that the defendant, not the government, introduced the subject of weapons of mass destruction.  Alternatively, the Court rejected that argument under plain error review, since the defendant below had argued "sentencing entrapment" rather than "sentencing factor manipulation."

Judge Martin concurred in the judgment.  She agreed with the outcome, but briefly observed that the majority's standard on the FISA issue exceeded the facts of the case, which was limited to a challenge to the certifications.  She also noted that, because the defendant had abandoned his confrontation clause argument, she would not have addressed it.

Rehaif: No Mens Rea Required as to Status Element of 922(g)

In United States v. Rehaif, No. 16-15860 (Aug. 17, 2017) (Dubina, Ed Carnes, William Pryor), the Court affirmed the defendant's conviction for possessing a firearm and ammunition while being unlawfully in the United States, in violation of 18 U.S.C. 922(g)(5)(A) and 924(a)(2).

On appeal, the defendant first argued that the government was required to prove not only that he knowingly possessed the firearm/ammunition, but also that he knew he was unlawfully in the United States.  In rejecting that argument, the Court relied heavily on 922(g)(1) precedents -- including an 11th circuit case from 1997 -- holding that the government does not need to prove that the defendant knew of his felon status.  Notably, it rejected the contrary conclusion reached in a concurring opinion by then-Judge Gorsuch.  The Court opined that there was no reason to treat felon status under 922(g)(1) differently than unlawful-presence status under 922(g)(5).  It therefore broadly held that "there is no mens rea requirement with respect to the status element of 922(g)."  The Court nonetheless noted that, although not alleged in that case,"there could be a mistake of fact defense."

Next, the defendant argued that he was "unlawfully" presented in the United States only when he was so adjudicated by an immigration officer.  As a matter of statutory construction, the court rejected that argument, finding that he was unlawfully in the United States the moment he violated the terms and conditions of his visa.  In that case, the defendant had remained in the United States under an F-1 non-immigrant student visa after he was no longer enrolled as a full-time student.

Martin: Denial of Motion Seeking Judicial Recommendation for BOP Placement Is Not an Appealable Order

In United States v. Martin, No. 16-17353 (August 15, 2017) (Wilson, Jordan, Rosenbaum) (per curiam), the Court held that an order denying a defendant's motion for a non-binding, judicial recommendation to BOP for placement in a residential re-entry center was not a final appealable order under 28 U.S.C. 1291.  In so holding, the Court followed the unanimous view of six other circuits.

Caraballo: District Courts Have Jurisdiction to Consider Successive 3582(c)(2) Motion Where Initial Motion Denied

In United States v. Caraballo-Martinez, No. 16-11772 (August 4, 2017) (Hull, Marcus, Clevenger), the Court affirmed the denial of the defendant's motion for a sentencing reduction under 18 U.S.C. 3582(c)(2).  The primary question on appeal was a threshold one: whether the district court had jurisdiction to entertain Caraballo's successive 3582(c)(2) motion.  Although he was eligible for a sentencing reduction based on Amendment 599, the district court had denied his initial 3582(c)(2) motion under the 3553(a) factors.  Caraballo then filed a renewed 3582(c)(2) motion based on the same Guideline.  On appeal, the Court held that, where the district court denies -- as opposed to grants -- the initial 3582(c)(2) motion and thus does not impose a different sentence, the court retains jurisdiction to consider a successive 3582(c)(2) motion based on the same Guideline.  The Court declined to address, and thus left open, whether there were non-jurisdictional prohibitions on such successive motions.  The Court nonetheless affirmed the denial of Caraballo's successive 3582(c)(2) motion, finding that the district court had sufficiently considered and weighed the 3553(a) factors.

Kevin Newsom

Yesterday the Senate confirmed Kevin Newsom of Alabama as the newest member of the Eleventh Circuit by a vote of 66-31.  His biography remains available at the link below.

https://www.bradley.com/people/n/newsom-kevin-c

Williams: Affirming MDLEA Convictions Where No Drugs Found

In United States v. Williams, et al., No. 15-15460 (August 1, 2017) (Jill Pryor, Jordan, Proctor), the Court affirmed the defendants' MDLEA drug convictions and one defendant's failure to heave to conviction, but found insufficient evidence to support the remaining defendants' convictions for aiding and abetting the failure to heave to.

The Court rejected the defendants' three evidentiary arguments.  First, it rejected the argument that the district court improperly admitted expert testimony regarding IoScan results reflecting traces of cocaine on the vessel.  The Court rejected the argument that, although the witness was an expert in operating IoScan machines, he was not an expert in interpreting its results; and it rejected the argument that the expert's testimony should have been excluded under Daubert or Rule 403 because it could not definitively answer every question about the presence of cocaine on the vessel.

Second, the Court rejected the argument that the district court improperly allowed Coast Guard officers to provide lay opinion testimony that objects jettisoned from the vessel resembled cocaine bales found in prior drug interdictions.  That observation was properly admitted as lay, rather than expert, testimony because it was based on the objects' appearance and size using an infrared system, and did not require scientific or technical knowledge.  The Court rejected the defendants' argument, based on Jayyousi, that opinions offered by law enforcement officers do not automatically become expert opinions simply because they involve knowledge that pre-existed the instant investigation.

Third, the Court rejected the argument that the district court improperly admitted a "zarpe," a Colombian document including the names of the defendants and their ports of call, as unauthenticated and containing hearsay.  The government introduced evidence that the zarpe was authentic under Rule 901.  And it did not contain hearsay because it was offered to demonstrate that it was a ruse, not accurate.

The Court found sufficient evidence to support the defendants' drug conspiracy convictions, despite the fact that no cocaine was found on the vessel or in the sea.  The Court relied on the following facts: they were traveling at night in rough waters on a known drug trafficking route; the vessel was traveling in the opposite direction of where the captain initially said it was going; there was no fishing equipment on the vessel, which was registered as a fishing vessel; the crew members were observed throwing objects overboard; the officers found gasoline, a known masking agent; and the vessel behaved erratically.  The Court found sufficient evidence that the contraband was in fact cocaine based on officers' testimony about prior cocaine interdictions in that same area, the size/shape of the bales thrown over, and the IoScan results.

The Court affirmed defendant Williams' conviction for failing to heave to, because he was the master of the vessel, which sped up and made erratic movements after hailed by the Coast Guard.  The Court, however, reversed the remaining defendants' convictions for aiding and abetting that violation, because there was no evidence that they intended to aid and abet Williams' failure to heave to; the fact that they jettisoned the packages was insufficient.

Hernandez: Coast Guard Certification Conclusive Proof of MDLEA Jurisdiction

In United States v. Hernandez, et al., No. 15-10810 (July 28, 2017) (Rogers (6th Cir.), Hull, Marcus), the Court upheld the defendants' drug-trafficking convictions under the MDLEA.

The primary issue on appeal was whether the vessel was subject to the jurisdiction of the United States as a vessel without nationality.  The Court concluded that it was because the Coast Guard's certification that Guatemala neither confirmed nor denied its registration was conclusive proof satisfying the jurisdictional requirement.  The Court found that the defendants could not look behind or challenge that certification, even where, as here, it turned out that the vessel was in fact registered in Guatemala, and the defendants claimed that the Coast Guard possessed information that would have easily led it to reach that conclusion.  The Court, in a lengthy discussion, reached that conclusion as a matter of both statutory construction and international law.  The Coast Guard's certification is conclusive proof, even if inaccurate or the product of bad faith, because the statute delegates such matters to the diplomatic branches.  Relatedly, the Court rejected the argument that, by the time Guatemala neither confirmed nor denied registration (making the vessel subject to US jurisdiction), the defendants were no longer committing the drug offense.

The Court also rejected several additional arguments by the defendants.  It found the evidence sufficient to support the convictions.  It found no reversible prosecutorial misconduct because, even though some remarks made during closing did "not reflect the high standards to which the Government should hold itself," they were not sufficiently prejudicial.  The Court found that the accidental destruction of the vessel and other items did not violate Brady or Arizona v. Youngblood.  The Court briefly rejected various hearsay-related arguments.  And the Court upheld sentencing enhancements for both acting as a captain, where the defendant identified himself as such and held a captain's license, and for recklessly creating a substantial risk of death, where the defendant engaged in aggressive maneuvering of the vessel.

Little: Constructive Possession of a CP Email Where Stored on the Server

In United States v. Little, No. 16-10664 (July 28, 2017) (Ed Carnes, William Pryor, Dubina), the Court affirmed a conviction and sentence for possessing and transporting child pornography.

As for the conviction, the defendant argued that venue was improper in Florida for his possession conviction, because he received an email with child pornography attached while he was in Texas and did not open that email while he was in Florida.  The Court rejected that argument for two reasons.  First, the Court found that the defendant unquestionably possessed a different email containing child pornography while in Florida, since he sent that email to someone else.  Even though that email was also the subject of the transportation count, that did not violate double jeopardy because possession and transportation have different elements.  Second, and in any event, the Court found that the defendant had constructive possession of the Texas email while he was in Florida, because he had the power to retrieve that email from the server, and he expressed an intention to do so by discussing trading child pornography.  Applying plain error, the Court also upheld the denial of a motion to sever the possession and transportation counts, emphasizing that they involved the same time-frame, same email account, and similar subject matter.

As for the sentence, the Court found that the district court did not err in applying the five-level enhancement for distributing child pornography with the expectation to receive a thing of value, pursuant to U.S.S.G. 2B2.2(b)(3)(B).  The Court found no clear error in finding that the evidence reflected an expectation of receiving child pornography, which was a thing of value.  The Court also upheld the two-level enhancement for using a computer in connection with the charged offense, pursuant to U.S.S.G. 2B2.2(b)(6).  The Court found that applying the enhancement did not result in impermissible double-counting, because his base-offense level did not fully account for his use of a computer.  Agreeing with five other circuits, the Court reasoned that, because not all transportation cases necessarily do require the use of a computer, that use was not fully reflected in the base-offense level for that count.

Martin: Florida Fleeing and Eluding is a "Crime of Violence" Under Guidelines' Former Residual Clause

In United States v. Martin, No. 16-11627 (July 27, 2017) (Ed Carnes, Tjoflat, William Pryor) (per curiam), the Court held that the defendant's Florida conviction for fleeing and eluding was a "crime of violence" under U.S.S.G. 2K2.1(a)(4)(A).  The Court relied on prior precedent holding that this offense qualified under the residual clause of the Armed Career Criminal Act, and the residual clause in U.S.S.G. 4B1.2 (and incorporated into 2K2.1) had the same meaning.  It therefore qualified under that clause.  The Court recognized that, although Johnson had declared the ACCA's residual clause void for vagueness, Beckles held that the residual clause in 4B1.2(a)(2) was not unconstitutionally vague.  Finally, the Court noted that the Sentencing Commission had deleted the residual clause in 4B1.2, but that amendment had not taken effect at the time of the defendant's sentencing.  And the Court declined to apply that amendment retroactively because it was substantive, not clarifying, since it eliminated an entire class of offenses from the "crime of violence" definition.

Gill: Firearm Possession under 2K2.1 "Unlawful" if Prohibited by State Law

In United States v. Gill, No. 16-11306 (Ed Carnes, William Pryor, Dubina) (per curiam), the Court held that, for purposes of U.S.S.G. 2K2.1(b)(1), the "unlawful" possession of a firearm includes possession that is unlawful under state law.  The defendant argued that, because the firearm in question was manufactured in Florida and did not move in interstate or foreign commerce, it was not unlawful under federal law and therefore should not count for purposes of 2K2.1.  The Court rejected that argument, finding that the firearm was nonetheless unlawful under Florida's felon-in-possession statute, and that was sufficient for the Guideline.  Although the government did not make that argument below, the Court was free to affirm on that alternative ground, because all of the relevant facts were contained in the PSI, those facts were not disputed, and the Court could take judicial notice of the Florida statute.  Finally, the Court found that the facts demonstrated the defendant's possession of the firearm because there was joint custody of the safe in which it was found, and that safe contained other items admittedly belonging to the defendant.  

Burke: State Sentence Imposed After Initial Federal Sentence but Before Federal Re-sentencing is "Prior Sentence"

In United States v. Burke, No. 16-16458 (July 19, 2017) (William Pryor, Ed Carnes, Dubina), the Court held that the term "prior sentence" under U.S.S.G. 4A1.1(a) includes a state sentence imposed after the defendant's initial federal sentence but before the district court vacated that sentence and re-sentenced him.

In 2010, Burke was sentenced as an armed career criminal.  In 2011, a Florida state court sentenced him on a variety of offenses.  In 2016, the district court granted Burke's 2255 motion based on Johnson, vacated the initial sentence, and conducted a full re-sentencing.  At that re-sentencing, the court treated the 2011 Florida sentences as "prior sentences" for purposes of calculating his criminal history.  The court of appeals held that this was correct because, when a district court vacates a sentence, that sentence becomes void in its entirety.  "[V]acatur in our Circuit wipes the slate clean," and re-sentencing is de novo.  Therefore, the 2011 sentences became "prior sentences" when he was re-sentenced in 2016.  In so holding, the Court joined the Eighth and Ninth Circuits and rejected a contrary decision from the First Circuit.  It also rejected Burke's reliance on the rule of lenity, finding the text of the Guideline clear, but also doubting that the rule of lenity applies to the advisory Guidelines at all.

The Court also rejected Burke's argument that his 1999 Florida armed robbery conviction was not a crime of violence under U.S.S.G. 2K2.1, because that argument was foreclosed by binding precedent in Fritts and Lockley.

Lange: Florida Aiding and Abetting Attempted Manufacture is "Controlled Substantce Offense"

In United States v. Lange, No. 16-15164 (July 17, 2017) (William Pryor, Ed Carnes, Moore), the Court held that the Florida offense of being a principal to the attempted manufacture of a controlled substance qualified as a "controlled substance offense" under U.S.S.G. 4B1.2(b).

In so holding, the Court relied heavily on the commentary to the Guidelines.  Although the commentary listed aiding and abetting, attempting, and conspiring to prohibit manufacture, the Court found that this list of inchoate crimes was inclusive, not exclusive.  Applying general rules of statutory construction, and declining to read the Guidelines narrowly, the Court found that the commentary also encompassed principal liability for aiding and abetting attempted manufacture.  Like the enumerated inchoate crimes, this crime also sought to prohibit manufacture.  To support its conclusion, the Court also relied on Florida's principal liability law and the federal law of aiding and abetting under 18 U.S.C. 2.

Applying plain error, the Court also rejected the defendant's argument that the government engaged in sentencing factor manipulation by encouraging five separate criminal transactions during a sting operation instead of arresting him after the first transaction.  The Court noted that the government must engage in "extraordinary  misconduct" in order to engage in sentencing factor manipulation, and the Court had never previously reduced a sentence on that basis.  The Court found no error, let alone plain error, because nothing required officers to make an arrest after the first transaction in a sting operation.

Wright: Non-Descript PII not an "Access Device" and Traffic Citation Not an "Arrest"

In United States v. Wright, No. 15-14833 (July 14, 2017) (Hull, Marcus, Rogers), the Court addressed a variety of Guidelines issues, ultimately vacating the sentence and remanding for further proceedings.

First, for purposes of the fraud loss Guideline and identity-theft statute, the Court held that debit/credit cards and social security numbers qualified as an "access device."  The Court, however, held that "personal identifying information" -- without any evidence about what that information contained -- was not an access device.  Because the district court's loss calculation turned on that issue, and there were no factual findings regarding the PII, the Court remanded for further proceedings.

Second, the Court affirmed the denial of a two-level minor-role reduction under De Varon, finding that the defendant possessed and transmitted lots of PII.  Although she claimed that she feared for her safety, her refusal to identify any other members of the conspiracy meant that she failed to meet her burden to establish that she had a lesser role.

Third, the Court affirmed the denial of a reduction for acceptance of responsibility because, although the defendant had cooperated and pled guilty, she was convicted for misdemeanor marijuana possession during pretrial release, finding that evidence of continued, but unrelated, criminal conduct after an arrest supports the denial.

Fourth, the Court held that a diversionary disposition resulting from a nolo plea qualified for criminal history points, even though adjudication was withheld.  The Court also held that a traffic citation did not constitute an intervening "arrest" for purposes of 4A1.2(c), a question that had divided two circuits.

Louis: Drug-Trafficking Convictions Reversed for Insufficient Evidence

In United States v. Louis, No. 16-11349 (July 10, 2017) (Wilson, Tjoflat, Robreno), the Court reversed a defendant's drug-trafficking convictions for insufficient evidence.

The Court emphasized that, in order to find the defendant guilty of conspiracy to posses cocaine with intent to distribute, and possession of cocaine with intent to distribute, the government was respectively required to prove beyond a reasonable doubt that the defendant knew the object of the conspiracy and that he was in possession of cocaine.  The Court found that, while there was sufficient evidence that the defendant knew that the boxes in question contained contraband that was illegal under some law, there was insufficient evidence to establish his knowledge that the boxes contained drugs.  The government relied heavily on the defendant's presence and flight, but the Court found this evidence, without more, to be insufficient.  The Court also rejected the government's reliance on an entrustment theory because, despite the large quantity of drugs, the defendant was present with the drugs only briefly and was never left alone with them.

Melton: Promise to File 5K or Rule 35 Motion is Not a Promise to File a 3553(e) Motion

In United States v. Melton, et al. Nos. 15-15738, 15-15743 (July 10, 2017) (Ed Carnes, Rosenbaum, Higginbotham), the Court reversed orders granting defendants relief under 18 U.S.C. 3582(c)(2) to sentences below the statutory minimum based on 18 U.S.C. 3553(e).

Generally, a defendant sentenced to the statutory minimum is not entitled to a reduction under 3582(c)(2).  The district court went below the statutory minimum here by effectively forcing the government to file a 18 U.S.C. 3553(e) motion, believing that this was necessary in order to give the defendants the benefit of their plea agreement.  The Court reversed because, although the plea agreement contemplated the government filing a 5K1.1  or Rule 35 motion (and the government did in fact file a 5K motion at the original sentencing), the agreement said nothing at all about a 3553(e) motion.  And the Court refused to imply such a promise into the agreement, distinguishing between 3553(e), 5K, and Rule 35.  Because the plea agreement did not include such a 3553(e) promise, the Court concluded that the district court lacked authority to re-write the agreement and go below the statutory minimum when granting 3582(c)(2) relief.  The Court declined to address whether the government is permitted to file a 3553(e) motion in a 3582(c)(2) proceeding in order to give the defendant the benefit of his bargain.

Ovalles: Johnson Does not Invalidate Residual Clause in 924(c)(3)(B)

In Ovalles v. United States, No. 17-10172 (Hull, William Pryor, Tjoflat), the Court -- without holding oral argument -- held that Johnson does not invalidate the residual clause in 18 U.S.C. 924(c)(3)(B), and that attempted carjacking satisfies the elements clause in 18 U.S.C. 924(c)(3)(A).

As for the residual clause, the Court agreed with three circuits and found that 924(c)(3)(B) was materially different, both textually and functionally, from the ACCA's residual clause.  The Court found the Seventh Circuit's contrary decision in Cardena unpersuasive.  Notably, the Court did not mention Dimaya, still pending in the Supreme Court, but on page 21 it did seek to distinguish the analysis under 16(b) as being less precise and predictable than the analysis under 924(c)(3)(B).

As for the elements clause, the Court observed that it had already held in the SOS context, in In re Smith, that carjacking qualified.  Assuming that attempted carjacking by "threat and violence" clearly qualified, the Court focused on the intimidation prong, finding that "[p]roscribed criminal conduct where the defendant must take the car by intimidation and act with intent to kill or cause serious bodily injury is unmistakably a crime of violence also."  For support, the Court notably cited two federal bank robbery cases, Kelly and In re Sams.  Applying categorical approach, the Court concluded that it could conceive of no "plausible" (as distinguished from "theoretical") ways to commit attempted carjacking without either the attempted or threatened use of force.

Spivey: Police Deception Does Not Vitiate Voluntariness of Consent

In United States v. Spivey, No. 15-15023 (June 28, 2017) (William Pryor, Martin, Boggs), the Court held that the use of deception by law enforcement officers did not vitiate the voluntariness of a defendant's consent to the warrantless entry and search of her home.

The majority said that, while deception can be relevant to voluntariness, it would not necessarily or always render consent involuntary; rather, it was just one factor to consider.  At the same time, the court also said that the subjective motivation of the officers, including their use of a pretext or even a deliberate lie, was not relevant to voluntariness, since the inquiry focused on the defendant's state of mind.  In this case, the defendant had reported prior burglaries of her home.  The burglar was arrested and informed the authorities that the home contained a credit card manufacturing plant.  Two federal fraud-task force officers then went to the home on the pretext of following up on the burglary when in fact their real purpose was to investigate the credit card fraud.  They informed her that they were there to investigate the burglaries, and they misrepresented the identity of one of the officers -- a Secret Service Agent who falsely posed as a crime-scene technician and pretended to dust the house for fingerprints.  The majority found that the defendant essentially invited the officers to her home by reporting the burglaries and made the strategic decision/gamble to assume the risk of the officers discovering contraband.

Judge Martin wrote a lengthy dissent, arguing that the consent was not voluntary under the circumstances of this case.  She concluded this way: "The Majority opinion tells police that what happened here is not a problem.  In effect, it teaches police they don't need to get a warrant so long as they can pre-plan a convincing enough ruse.  This is true even if, as here, that ruse includes skirting the limits of the officer's legal authority to investigate only certain crimes.  In doing so, I fear the Majority opinion undermines the public's trust in the police as an institution together with the central protections of the Fourth Amendment.  When I read the record in Ms. Austin's case, I don't believe this is the 'reasonable' conduct our Founders had in mind when drafting the Fourth Amendment."

Alberts: Minor-on-Minor Conduct Can Trigger 2G2.2(b)(5) Enhancement for Pattern of Sexual Abuse

In United States v. Alberts, No. 16-11065 (June 13, 2017) (Martin, Jill Pryor, Anderson), the Court affirmed a 120-month sentence for receiving and possessing child pornography.

The defendant unsuccessfully made two arguments on appeal.  First, he argued that the district court erroneously applied the enhancement in 2G2.2(b)(5) for engaging in a pattern of activity involving sexual abuse.  The defendant did not dispute the PSI facts, where he admitted to engaging in sexual activity with minor relatives, and that admission, coupled with corroborating indicators of his interest in pedophilia and incest, was sufficient to support the enhancement.  The defendant argued that, because the sexual activity occurred more than 30 years ago, it was too attenuated, but he acknowledged that this argument was foreclosed by binding circuit precedent.  And the Court rejected the defendant's argument that the enhancement does not apply to sexual activity committed by the defendant when he himself was a minor.  Joining other circuits, the Court reasoned that the application notes to 2G2.2(b)(5) referred to several statutory provisions that prohibited minor-on-minor conduct, and nothing in the Guideline was to the contrary.  The Court cautioned, however, that only conduct falling within one the statutory provisions can support an enhancement, but the defendant did not dispute that his conduct qualified as "sexual acts" within the meaning of one of those statutes.

Second, the defendant argued that his sentence was procedurally and substantively unreasonable.  As to the former, the Court, applying plain error, found that, although the district court did plainly err under Tapia by considering the need for rehabilitation at sentencing, that error did not affect the defendant's substantial rights because rehabilitation was merely an ancillary concern at sentencing.  As to the latter, the Court found that the 120-month sentence, which fell below the properly calculated guideline range, was not substantively unreasonable.

In re Hernandez: Denial of a Second SOS Application Based on Baptiste

In In re Hernandez, No. 17-11989 (May 31, 2017) (per curiam), the Court denied an application for leave to file a second or successive 2255 motion based on Johnson.  He argued that his 924(c) convictions based on Hobbs Act robbery/extortion and carjacking were invalid because those predicates no longer qualified as crimes of violence.  Mr. Hernandez had previously filed a similar application based on Johnson, which the Eleventh Circuit had denied on the ground that his Hobbs Act convictions qualified as crime of violence under the elements clause in 924(c)(3)(A).  Under the Eleventh Circuit's precedent in In re Baptiste, that earlier denial precluded his instant application.  The Court further added that Mathis did not announce a new rule of constitutional law and therefore did not provide an independent basis for his application.

Judge Martin, joined by Judge Jill Pryor, concurred in the result in a 13-page opinion.  In the concurrence, she: reiterated her disagreement with Baptiste, but recognized that it remained binding precedent; explained that it was not clear that, under the categorical approach, Hobbs Act extortion satisfies the elements clause; attempted Hobbs Act extortion is even less likely to satisfy the elements clause; and the practice of stacking 924(c) convictions, which was "prolific" in the Southern District of Florida, can lead to particularly harsh and unjust sentences.  She closed by lamenting the Court's inability to revisit the original panel ruling and thereby permit Mr. Hernandez to have the district court determine whether his sentence is illegal.

Jockisch: Jury Unanimity Not Required for Underlying State Offense in Attempted Enticement Prosecution

In United States v. Jockisch, No. 14-13577 (May 26, 2017) (Julie Carnes, Jordan, Robreno), the defendant was charged under 18 U.S.C. 2422(b) with attempting to persuade a 15-year old minor to engage in sexual activity that, if consummated, would have violated Alabama law.  The indictment listed three Alabama statutes that the defendant could have been charged with had that sexual activity occurred: second-degree rape, second degree sodomy, and second degree sexual abuse.  The Court rejected the defendant's argument that the jury was required to unanimously agree as to which Alabama offense the sexual activity would have violated.  Finding these to be means rather than elements of the offense, and distinguishing the Supreme Court's decision in Richardson, the Court held that the jury need unanimously agree only that the sexual activity being enticed would have violated at least one of the listed Alabama statutes had it been carried out.  Alternatively, the Court held that the jurors were necessarily unanimous that the defendant could have been charged with second degree sexual abuse.

Judge Jordan concurred in the judgment, disagreeing with the majority's analysis.  Agreeing with a contrary decision from the Seventh Circuit, he would have required the jury to unanimously agree on the underlying state offense.  He concurred because he believed that the error in this case was harmless.

Doyle: Prejudice Presumed for Allocution Errors Notwithstanding Low-End Sentence

In United States v. Doyle, No. 14-12181 (May 25, 2017) (Ed Carnes, Jill Pryor, Ripple), the Court addressed whether the presumption of prejudice governing allocution errors applies where the defendant is sentenced at the low-end of the advisory guideline range.  The Court held that it does.

There is a general presumption of prejudice for purposes of the third plain-error prong where a defendant is not afforded the opportunity to allocute at sentencing.  In pre-Booker cases, however, the Court had carved out an exception where the defendant received a sentence at the low end of the then-mandatory guideline range.  The reason: there was virtually no possibility that the defendant could have received a lower sentence.

In Doyle, the Court held that this exception to the presumption of prejudice did not apply to post-Booker advisory cases.  Even if the defendant is sentenced at the low end of the guideline range, there is a still a possibility that he could receive a lower sentence by virtue of a downward variance (provided he is not sentenced at the statutory minimum).  Accordingly, even though Doyle received a sentence at the low end of the guideline range, and he failed to object to the court's failure to afford him the opportunity to allocute, there was a presumption of prejudice (and the other plain-error prongs were satisfied).  The Court therefore vacated the sentence, remanding for the limited purpose of allocution and for the court to consider any post-sentencing rehabilitation in its discretion.

Shalhoub: Denial of fugitive challenge not immediately appealable

In U.S. v. Shalhoub, No. 16-10533 (April 28, 2017), the Court held that the denial of a motion for special appearance of counsel to seek the dismissal of an indictment on the ground that the defendant is a fugitive is not an immediately appealable collateral order. The Court noted that the only orders that are immediately appealable are those where the right would be destroyed if it were not vindicated before trial. The Court found that Shalhoub’s motion was not asserting “a right not to be tried,” the usual prerequisite for an immediately appealable order.” The Court also rejected Shalhoub’s request for a writ of mandamus to order the district court to rule on his motion for dismissal of the indictment. “That [Shalhoub] does not want to submit himself to the jurisdiction of the federal courts does not make the legal remedies available to challenge his indictment inadequate.”

Doran: FSU organization did not receive federal funds

In U.S. v. Doran, No. 16-10927 (April 26, 2017), the Court reversed a conviction for embezzlement in violation of 18 U.S.C. § 666, holding that the organization that was the victim of Doran’s scheme, the non-profit Student Investment Fund established by Florida State University for educational purposes, was not a recipient of federal funds, and § 666 therefore was not violated. The Court found that the non-profit organization was not an “alter ego” of FSU. [Jill Pryor, J., concurring, would have held that the government failed to put on sufficient specific proof that FSU received over $10,000 in federal funds, and that § 666 therefore was not violated].

Collins: bank gratuity offense is "offense against property"

In U.S. v. Collins, No. 15-12805 (April 26, 2017), the Court held that for restitution purposes, a defendant guilty of conspiracy to accept gratuities with the intend to influence a bank transaction has committed an “offense against property,” and is therefore subject to mandatory restitution –here, in the amount of $251,860.31. The Court stated that restitution does not apply to offenses “with only incidental property loss.” The Court held that it would not apply a “categorical approach” to determine whether an offense qualified as one “against property,” but would focus on the conduct underlying the offense of conviction. Here, Collins “sought to derive an unlawful benefit from the property at play in the bank transactions she corruptly facilitated.” Her offense therefore qualified as one “against property.”