Eleventh Circuit Court of Appeals - Published Opinions

Friday, June 30, 2017

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.

Wednesday, June 28, 2017

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."

Tuesday, June 13, 2017

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.