Bankston: Selling Body Armor Is Not a "Use" of Body Armor Under USSG 3B1.5

In United States v. Bankston, No. 18-14812 (Grant, Martin, Newsom), the Court vacated the defendant's sentence based on the miscalculation of his guideline range.

Specifically, the Court accepted the defendant's argument, raised for the first time on appeal, that the district court erroneously applied an enhancement for the "use" of body armor under USSG 3B1.5.  The commentary explained that use of body armor required either active employment to protect the person from gunfire, or use as a means of bartering.  The defendant, however, did no more than sell body armor for money, which was different than bartering, as bartering meant trading goods without the use of money.  Finding the language of the commentary clear, the Court rejected the government's reliance on legislative history and purpose.  And having found that the district court committed an error that was plain, there was not dispute that the remaining plain-error prongs were satisfied.

Vineyard: Tennessee Sexual Battery is Covered Sex Offender Under SORNA

In United States v. Vineyard, No. 18-11690 (Dec. 20, 2019) (Julie Carnes, Marcus, Kelly (10th)), the Court upheld the denial of a motion to dismiss a conviction for failure to register under SORNA.

The Court rejected the defendant's argument that his prior Tennessee conviction for sexual battery was not a covered "sex offense" under SORNA, which (as relevant here) required "sexual contact" as an element.  First, the Court held that the categorical approach (rather than a circumstance-specific approach) applied.  Second, the Court held that, based on dictionary definitions and common understanding, "sexual contact" under SORNA meant a touching or meeting of body surfaces where the touching or meeting is related to or for the purpose of sexual gratification.  The Tennessee offense required such contact, and the defendant did not argue otherwise.  Third, the Court rejected the defendant's argument that "sexual contact" under SORNA instead incorporated a broader meaning from an unrelated federal statute.  Finally, even if the Court used that broader meaning, it concluded that the Tennessee offense satisfied it.  The Court rejected as "border[ing] on the absurd" the defendant's argument that the Tennessee offense was overbroad because it required contact with the "primary genital area" rather than just the genitals.  And the Court rejected the defendant's argument that Tennessee case law permitted the contact to be with the lower back or abdomen.

Perez: Threat-of-Death Enhancement Did Not Apply Where Bank Robber Threatened Harm But Not Death

In United States v. Perez, No. 17-14136 (Nov. 26, 2018) (Rosenbaum, Tjoflat, Pauley) (per curiam), the Court held that the district court clearly erred by applying the threat-of-death enhancement in the bank robbery Guideline, 2B3.1(b)(2)(F).

Accepting the government's concession, the Court concluded that, on the facts of this case, the defendant's conduct during two bank robberies would not have put a reasonable person in fear of death (as opposed to mere harm or danger).  While the defendant's notes to the tellers threatened harm in general, there was nothing to communicate a threat of death.  He did not state or imply that he had a weapon.  He did not wear clothing that could have concealed a weapon.  He did not wear a disguise.  He did not make any threatening gestures or act menacingly.  His note stated that he had kids to feed.  He did not aggressively demand money.  And, during one robbery, the teller rebuffed his demands; and, during the other, the teller left the counter and returned several minutes later.  Applying the enhancement under these facts would have impermissibly led to applying the enhancement in all bank robberies.

Achey: Government Not Required to Prove Specific Drug Type When Included in the Indictment Only for Sentencing Purposes

In United States v. Achey, No. 18-11900 (Nov. 21, 2019) (Robreno, William Pryor, Jill Pryor), the Court affirmed the defendant's conviction for conspiracy to distribute a controlled substance.

The defendant argued that the evidence was insufficient because the government was required to prove that he conspired to distribute a specific controlled substance, but at trial it proved only that he distributed a controlled substance in general.  The Court rejected that argument.  The Court held that, under 21 U.S.C. 841(a)/846, the government was generally required to prove a conspiracy to distribute only a generic controlled substance; the type of controlled substance was not an element of the offense but was relevant only for sentencing purposes under 841(b).  While the government must prove the specific type of drug when it is charged as an element in the indictment, the indictment's reference to a specific drug here was fairly read as relevant only for sentencing purposes, as evidenced by the word "involving" and a citation to 841(b).  And, on the particular facts of this case, the Court found sufficient evidence of a conspiracy to distribute a controlled substance in general.

Brown: Hobbs Act Conspiracy Is Not a Crime of Violence

In Brown v. United States, No. 17-13993 (Nov. 12, 2019) (Martin, Rosenbaum, Jill Pryor) (per curiam), the Court granted the parties' joint motion for summary reversal of the denial of a 2255 motion challenging a 924(c) conviction.

First, the Court determined that Brown's 924(c) conviction was predicated solely on Hobbs Act conspiracy.   Although the indictment referenced both Hobbs Act conspiracy and two drug trafficking crimes, and the factual proffer included facts about the drug crimes, the plea agreement and plea colloquy showed that Brown's 924(c) conviction was based solely on the Hobbs Act conspiracy.  Those facts distinguished this case from In re Navarro, where the plea agreement referred to both Hobbs Act conspiracy and drug-trafficking crimes.

Second, and joining other circuits, the Court held that Hobbs Act conspiracy was not a crime of violence under the elements clause in 924(c)(3)(A).  The Court explained that neither an agreement to commit a crime nor knowledge of the conspiratorial goal necessarily requires the use, attempted use, or threatened use of force.  And a defendant's voluntary participation in the conspiracy can manifest itself in countless non-violent ways.

In re Wright: Denying Successive Application Based on Rehaif

In In re Wright, No. 19-13994 (Nov. 7, 2019) (Ed Carnes, Tjoflat, Rosenbaum) (per curiam), the Court denied an application for leave to file a second or successive 2255 motion based on Rehaif.

The applicant sought to make two claims.  First, he claimed that he was actually innocent of his 922(g)(1) offense in light of Rehaif because he did not know he was a felon.  However, relying on its earlier decision in In re Palacios, the Court ruled that this claim did not satisfy the gatekeeping criteria in 2255(h)(2) because Rehaif was a statutory (not constitutional) decision, and the Supreme Court had not made it retroactive to cases on collateral review.

Second, the applicant claimed that he received ineffective assistance of counsel when his counsel advised him to plead guilty.  He had previously been convicted of a felon-in-possession offense in state court, and he claimed that his subsequent federal conviction violated his double jeopardy rights.  The Court denied him leave to pursue that claim in a 2255 motion because he did not identify any newly discovered evidence, and the Supreme Court had not issued any new rule of constitutional law to support his claim.

Judge Rosenbaum concurred.  She agreed that the Rehaif claim could not be brought in a successive 2255 motion, but she suggested that he may be able to do so in a 2241 petition.  She explained that Rehaif applied retroactively.  And although Eleventh Circuit law would preclude him from filing a 2241 petition, that law did not govern his case because he was incarcerated in the Fourth Circuit.  Accordingly, she suggested that he attempt to file a 2241 in that Circuit.

Hunt: Alabama Second/Third-Degree Robbery and Michigan Carjacking Satisfied the Elements Clause

In United States v. Hunt, et al., No. 17-12365 (Oct. 30, 2019) (Jordan, Grant, Siler) (per curiam), the Court affirmed the defendants' sentences (after re-issuing what was previously an unpublished opinion).

First, the Court held that, based on a prior SOS precedent and Stokeling, Alabama second-degree and third-degree robbery satisfied the elements clause in the ACCA and Guidelines, because it required force to overcome the victim's resistance.

Second, the Court held that Michigan carjacking satisfied the elements clause.  Although the offense could be accomplished by putting another person in fear, the defendant identified no Michigan case which involved putting the victim in fear without the use, attempted use, or threatened use of force.

Finally, the Court found that a 60-month 922(g) sentence was not substantively unreasonable.  Although this sentence was an upward variance, the court justified it based on his criminal history and use of firearms during illegal activity.

Harris: Alabama Attempted First-Degree Assault Satisfied the ACCA's Elements Clause

In United States v. Harris, No. 18-11513 (Oct. 29, 2019) (Marcus, Julies Carnes, Paul Kelly (10th)), the Court upheld the defendant's ACCA enhancement based on Alabama attempted first-degree assault.

The Court held that the Alabama assault offense satisfied the elements clause.   The parties disputed which alternative element of Alabama assault was at issue.  The Court ruled out reckless assault as a matter of state law, as the Court found that a specific intent was required.  Of the remaining two possibilities, circuit precedent had already held that assault by causation of serious injury satisfied the elements clause, and the same was true of attempting to commit that offense.  As to assault by serious disfigurement, the Court similarly held this offense satisfied the elements clause because it required the causation of pain or injury.

Ross: Reasonable Expectation of Privacy in Motel Room Vanishes at Checkout Time

In United States v. Ross, No. 18-11679 (Oct. 29, 2019) (Newsom, Wilson, Proctor), the Court affirmed the denial of a motion to suppress evidence found in two searches of a motel room.

The first search was conducted 10 minutes after the defendant fled the motel on foot.  Although the government did not raise the argument below, the Court considered the government's argument that the defendant abandoned his room and therefore lacked Fourth Amendment standing to challenge the search.  The Court considered that argument because, under circuit precedent, abandonment also implicated Article III standing, which was not waivable.  However, the Court rejected the abandonment argument on the merits.  Although the defendant had standing to challenge the search and protective sweep of the room, the Court found that it was constitutional because the officers were seeking to execute an arrest warrant, and they had a reasonable belief that the room was the defendant's and that he was inside.

The second search was conducted with the consent of hotel management after the scheduled checkout time.  The Court concluded that the defendant lacked Fourth Amendment standing to challenge the search because the defendant lost any reasonable expectation of privacy in the room after checkout time.  The Court held that, in general, a short-term hotel guest loses a reasonable expectation of privacy in his room after checkout, provided the guest has not asked for and received a late checkout.

Judge Newsom concurred, criticizing the circuit precedent that obligated the Court to consider the government's abandonment argument raised for the first time on appeal, because it improperly treated abandonment as part of Article III standing.  He urged the full Court to reconsider that precedent, in part because the government's ability to raise that argument for the first time on appeal—"rope-a-dope, bait-and-switch, whipsaw, whatever you wanted to call it—just doesn't seem very fair."

Reed: Upholding Felon in Possession Conviction After Rehaif on Plain Error Review

In United States v. Reed, No. 17-12699 (Oct. 28, 2019) (William Pryor, Newsom, Julie Carnes), the Court—without oral argument—upheld the defendant's felon in possession conviction in the face of a Rehaif challenge on remand from the Supreme Court.

Reviewing for plain error, the Court acknowledged that there were plain errors at the defendant's trial in light of Rehaif.  Specifically, the indictment did not allege, the jury was not instructed, and the government was not required to prove that the defendant knew he was a felon at the time he possessed a firearm.  However, the Court found that these plain errors did not affect the defendant's substantial rights or the fairness/integrity of the proceeding, because the entire record established that he knew he was a felon.  The Court considered a felon stipulation at trial, trial testimony by the defendant that he knew he was not allowed to possess a firearm, and undisputed PSI facts to being incarcerated for long periods of time, including one stretch of 18 years.

Ochoa: Upholding Hobbs Act and Firearm Convictions/Sentences Over Various Challenges

In United States v. Ochoa, No. 16-17609 (Oct. 25, 2019) (Hull, Rosenbaum, Grant), the Court affirmed the defendant's Hobbs Act and firearm convictions and sentences over various challenges.

First, the Court found no abuse of discretion in the limitation of cross examination of an officer about his unrelated personal misuse of police computers and efforts to conceal that misuse.  Although that decade-old misconduct was relevant to his character for truthfulness, it was only marginally relevant in this case, and the district court reasonably found that it was likely to confuse or mislead the jury.  Any error was harmless in any event in light of other evidence at trial.

Second, the Court upheld the denial of pre- and post-Miranda statements.  As to the former, the Court found that public safety exception to Miranda applied where the agent asked questions that he reasonably believed were necessary to secure a residence after the arrest of the defendant, who was a suspect in an armed robbery where someone was shot.  Although the officer did not have any specific reason to suspect that any particular person remained in the residence, his concern that other unknown individuals might have remained inside, despite the defendant's assertion to the contrary, was reasonable given the number of people who had already emerged from the house.  As to the post-Miranda statements, the Court found that the defendant's statements that he did not "agree with" the waiver of rights provision on the form did not constitute an unambiguous invocation of his right to counsel or to remain silent.  Any error was harmless in any event.

Third, the Court rejected the defendant's argument that the district court should have dismissed one count of the original indictment with prejudice due to a violation of the Speedy Trial Act.  After a mistrial, the retrial did not occur within 70 days and the indictment was therefore subject to dismissal.  However, the court did not abuse its discretion by dismissing it without (rather than with) prejudice because 922(g)(1) was a serious offense, neither party alerted the court to the violation, and the defense identified no prejudice.  The Court also rejected the defendant's argument that the district court should have dismissed the second indictment under the Speedy Trial Act on the ground that it was not filed within 30 days of his "arrest."  The Court rejected the argument that the defendant was "arrested" for purposes of the Act when he was transferred from one federal prison to FDC for purposes of awaiting re-trial on one dismissed count after having been convicted on other charges.

Fourth, the Court found that the evidence in the particular case was sufficient to support the convictions for Hobbs Act robbery, 924(c), and 922(g)(1).

Fifth, the Court upheld the defendant's career offender enhancement on the ground that Florida armed robbery and second-degree murder were crimes of violence under the elements clause.  As to the robbery, the Court included a footnote reiterating its earlier suggestion in Fritts that, after 1976, sudden snatching never constituted robbery under Florida law.

Lastly, the Court upheld an enhancement under 2K2.1 because a large capacity magazine was found in close proximity to a firearm.  Although the firearm was ultimately found outside the residence, and not in close proximity to the magazine in the bedroom drawer, the district court found that the firearm had previously been in the same room, and possibly even the same drawer, as the magazine.

Judge Rosenbaum dissented on two points.  First, although she agreed that there was no abuse of discretion in limiting the cross examination, she did not agree with the majority's suggestion that the officer's efforts to obstruct an investigation into himself had no bearing on the likelihood that he may have manipulated evidence in an investigation of another person.  Second, she believed that the public safety exception did not apply because the officers were searching a private home and specifically asked about a weapon that could only be operated by another person; and, although a close question, she did not believe the error was harmless.

Steiner: Rosemond Applies Retroactively But Sufficient Evidence Supported the Conviction

In Steiner v. United States, No. 17-15555 (Oct. 16, 2019) (Wilson, Newsom, Proctor) (per curiam), the Court upheld the denial of a 2255 motion containing three claims.

First, the Court upheld the denial of the movant's claim under the Supreme Court's decision in Rosemond, which required advance knowledge of the firearm for aiding and abetting a 924(c) offense.  The Court agreed with the parties that Rosemond announced a new rule that applied retroactively on collateral review.  However, viewing the trial evidence in the light most favorable to the government, the Court concluded that sufficient evidence supported the movant's advance knowledge and thus his 924(c) conviction.

Second, the Court upheld the denial of a Davis claim because circuit precedent established that aiding and abetting a carjacking satisfied the elements clause.

Third, the Court upheld the denial of a claim that counsel was ineffective for failing to object to the jury instructions as erroneous under Rosemond.  Here, there was no basis to object because the trial occurred years before Rosemond, and the court instructed the jury correctly under the law in effect at the time.

Finally, the Court declined to remand for a COA determination on the movant's claim that the jury instructions themselves were erroneous.  The Court found that the district court's order granting a COA on the three claims above amounted to an implicit denial of a COA on this fourth claim.

Judge Proctor concurred in order to clarify why the movant had advance knowledge of firearm in relation to the underlying carjacking offense.

Pearson: District Court Lacked Jurisdiction Over an Unauthorized Collateral Challenge at a Re-sentencing

In United States v. Pearson, No. 17-14619 (Oct. 15, 2019) (Tjoflat, Newsom, Antoon), the Court upheld a new sentence imposed after the the court vacated the defendant's ACCA enhancement in a successive 2255 motion based on Johnson.

At the re-sentencing hearing, the defendant collaterally challenged several of his 924(c) counts, alleging that the indictment  did not allege every element of the offense.  The Eleventh Circuit concluded that this challenge was procedurally improper because the defendant had not received authorization to raise that claim in a second or successive 2255 motion.  Therefore, the district court lacked jurisdiction to consider it.  The Court also upheld as substantively reasonable the new lower 447-month sentence, which was the result of a low-end guideline range sentence for some counts, followed by 384 months based on 924(c) counts.

Bishop: Mere Proximity Between Firearm and Drugs for Personal Possession Is Insufficient for 2K2.1(b)(6)(B) Enhancement

In United States v. Bishop, No. 17-15473 (Oct. 11, 2019) (Wilson, Newsom, Coogler), the Court affirmed the denial of a motion to suppress but vacated the defendant's sentence due to a guideline error.

First, the Court upheld a pat down because it found that the officers had reasonable suspicion to believe that the defendant was armed and dangerous.  The Court rejected the defendant's argument that his nervous, fidgety behavior, coupled with the officers' knowledge that he had previously been an inmate at the county jail, was insufficient.  In addition to those facts, a woman arrested earlier that day had informed one of the officers that she was going to the defendant's house, and the defendant was non-compliant with the officer's orders to exit his vehicle.  The Court noted that knowledge of an individual's criminal history alone was not sufficient and was of little weight.

Second, the Court found that the district court erroneously applied the four-level enhancement in USSG 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony offense--namely, possession of a hydromorphone pill.  Because possession of that one pill was a drug possession offense, rather than a drug trafficking offense, the court was required under the Guidelines to find that the firearm facilitated or had the potential to facilitate that drug possession offense.  Mere proximity between the firearm and pill was insufficient without such a finding.  The Court remanded to give the parties and the court an opportunity to address that issue.

Finally, and relying on circuit precedent, the Court upheld the enhancement under USSG 2K2.1(a)(3) on the ground that the defendant's prior Florida conviction for drug conspiracy under 893.13 was a predicate "controlled substance offense" under the Guidelines.

Van Buren: Vacating Honest-Services Fraud Conviction For Failing to Instruct Jury on Meaning of "Official Act"

In United States v. Van Buren, No. 18-12024 (Oct. 10, 2019) (Rosenbaum, Martin, Boggs), the Court affirmed a conviction under the Computer Fraud and Abuse Act, but vacated a conviction for honest-services fraud through bribery.

The Court vacated the honest-services fraud conviction because the court failed to properly instruct the jury that about the meaning of the "official act" sought through bribery.  Relying on the Supreme Court's decision in McDonnell, the Court explained that an "official act" must be similar in nature to a lawsuit, hearing, or administration determination that can be pending before a public official.  Here, the district court refused the defendant's request to instruct the jury about that meaning.  Instead, it instructed the jury only that an official act involves a question or matter involving the formal exercise of government power.  The error was not harmless because, absent that proposed instruction, the defendant had no way to highlight the government's failure to identify an official act.  But because the government adduced sufficient evidence to convict had the jury been properly instructed, the Court remanded for a new trial as opposed to reversing the conviction outright.

As to the computer fraud conviction, the Court first found no error in declining to instruct the jury on a lesser-included misdemeanor offense on the ground that it was not committed for private financial gain.  The Court found no evidence that would have allowed the jury to convict him on the misdemeanor but not the felony, as there was no evidence that he engaged in the fraud for any reason other than personal financial gain.  The Court also found that the evidence was sufficient to support the conviction even though he inappropriately accessed a law-enforcement database that he was authorized to use; while that argument might prevail in other circuits, it was foreclosed by Eleventh Circuit precedent.

Finally, the Court rejected the defendant's argument that the court erred by declining to give a good-faith instruction, finding that this decision was within the court's discretion due to a lack of supporting evidence.  The Court also rejected the defendant's argument that he was denied his Sixth Amendment right to confront adverse witnesses because the out-of-court witness statement was admitted only to provide context for the defendant's statement, not for their truth.

Thomason: No Re-sentencing Hearing Require After Johnson Relief on Collateral Review

In United States v. Thomason, No. 17-11668 (Oct. 10, 2019) (William Pryor, Jill Pryor, Robreno), the Court upheld the denial of a re-sentencing hearing after obtaining Johnson relief on collateral review.

The Court found that no re-sentencing hearing was required because the erroneous ACCA enhancement did not affect the defendant's guideline range, and the judge re-sentenced the defendant to a lower guideline-range sentence after obtaining written submissions about the 3553(a) factors.  It did not matter that the original guideline range would have been affected by the Johnson error had it been correctly calculated at the original sentencing, since that error was not cognizable on collateral review.  And even though the judge, at re-sentencing, chose to run all of the unenhanced 922(g) counts consecutively in order to reach the high end of the guideline range, that did not constitute enough discretion to warrant a re-sentencing hearing with the defendant present.

Sanchez: New York Robbery and Murder Satisfy the ACCA's Elements Clause

In United States v. Sanchez, No. 18-10711 (Oct. 2, 2019) (Hull, Rosenbaum, Grant), the Court affirmed the defendant's ACCA sentence based on New York first-degree robbery and New  York second-degree murder.

As an initial matter, the Court synthesized recent decisions about the elements clause and explained that "physical force" means: 1) an act that is exerted by and through concrete bodies; and 2) that is directly or indirectly "capable" of causing pain or injury, in that it has the potential to do so.  Applying that standard, and agreeing with the Second and Fourth Circuits, the Court held that New York robbery satisfied the elements clause because it requires forcible stealing, which requires the defendant to use or threaten the immediate use of physical force.  The New York definition of forcible stealing largely tracked the elements clause and adopted the common law understanding of robbery, and it did not include robberies that could be committed by only a slight touching (like sudden snatching).  The Court found that Stokeling foreclosed the defendant's argument that robbery by blocking the victim did not satisfy the elements clause.

Second, the Court held that New York second-degree murder satisfied the elements clause because it required the intent to cause death to another person.   Relying on Castleman and Vail-Bailon, the Court reasoned that the intentional causation of bodily harm (or death) necessarily requires force "capable" of causing such harm.  The Court rejected the defendant's argument that murder by poison did not satisfy the elements clause, as that argument was foreclosed by the Court's precedents.  And the Court rejected the defendant's argument that murder did not qualify because it could be committed by omission.  As a matter of state law, the Court found that failing to act where there is a duty to act constitutes an act or conduct itself, not an omission.  And intentionally withholding medical treatment or food would constitute indirect force satisfying the elements clause for the same reason as poisoning.

Finally, the Court rejected, on plain error, the statutory argument that the ACCA applies only when the defendant is convicted of 922(g) and another offense.

Sheffield: Vacating Restitution Award in Tax Fraud Case Based on Spreadsheet Containing Duplicate Entries

In United States v. Sheffield, No. 17-13682 (Oct. 1, 2019) (Jordan, Tjoflat, Anderson), the Court vacated the restitution order.

In this fraudulent tax return case, the restitution amount should have been easy to calculate because each return triggered a refund of $1,000.  In this case, where the loss amount is definite and easy to calculate, the government could not rely on a reasonable estimate.  But rather than simply multiply the returns, the government introduced a spreadsheet, which contained duplicative entries that were not removed.  Although the duplicates were likely only a small portion of the overall award, the Court nonetheless vacated the award because the defendant had a right not to be sentenced on the basis of inaccurate or unreliable information.

Rothstein: Government Retained Discretion to Withdraw a Placeholder Rule 35 Motion

In United States v. Rothstein, No. 18-11796 (Sept. 30, 2019) (Tjoflat, William Pryor, Grant), the Court affirmed the grant of a government motion to withdraw a Rule 35 motion.

The Court rejected the defendant's argument that, although the government had discretion not to file a Rule 35 motion at all, the government lacked discretion to withdraw the placeholder motion that it filed for purposes of preserving the court's jurisdiction in the event it elected to proceed.  Although the cooperation agreement itself said nothing about withdrawing a Rule 35 motion, the Court reasoned that accepting the defendant's argument would allow a technicality to intrude on prosecutorial discretion.  In addition, the government specifically advised the defendant in the placeholder motion that it retained the right to withdraw the motion if the defendant breached the cooperation agreement, and that the cooperation was not yet complete.  Finally, the Court found no abuse of discretion in denying the defendant an evidentiary hearing to show that he complied with the cooperation agreement, because the only issue was a legal one about whether the government retained the discretion to withdraw the motion.

Boston: Principal to Florida Armed Robbery Satisfies the ACCA's Elements Clause

In Boston v. United States, No. 17-13870 (Sept. 30, 2019) (William Pryor, Jill Pryor, Robreno), the Court upheld the denial of the movant's Johnson/ACCA claim.

The Court held that the movant's Florida principal-to-robbery-with-a-firearm convictions satisfied the ACCA's elements clause.  Under Florida law, an aidor and abettor is punished the same as a principal offender, and so he necessarily commits all of the elements of principal Florida armed robbery.  The Court relied on its decision in In re Colon, which applied the same logic to aiding and abetting a Hobbs Act robbery.

Judge Jill Pryor concurred in the judgment, expressing doubts that In re Colon was correctly decided.  She emphasized that, under Florida law, an aidor and abettor does not have to be physically or constructively present at the commission of the offense.  She criticized In re Colon for taking the legal fiction—that one who aids and abets a robbery by driving the getaway car is deemed to have committed robbery itself—and using that to say that the getaway driver committed a crime involving the element of force.  She believed that this result was contrary to the text and puprose of the ACCA.

Annamalai: Reversing Bankruptcy Fraud Convictions, Fugitive Harboring Convictions, and Loss Amount

In United States v. Annamalai, No. 15-11854 (Sept. 24, 2019) (Jordan, Wilson, Moore (S.D. Ga.)), the Court affirmed in part and reversed in part the defendant's fraud convictions and sentences.

First, the Court rejected the defendant's argument that the government improperly joined 34 offenses and the court erred by denying his motion to sever some of the charges.  The Court reasoned that the charges arose out of the same general fraudulent scheme, and the defendant could not show prejudice just because the jury convicted him of several counts despite insufficient evidence.

Second, the Court rejected the defendant's argument that the prosecution, conviction, and sentencing violated his First Amendment right to freedom of religion.  The government's case was not an impermissible attack on the defendant's Hindu religion but rather involved a scheme where the defendant abused his position as a Hindu priest and engaged in fraud.

Third, the Court reversed the defendant's bankruptcy fraud convictions because the funds at issue were acquired after the Hindu temple filed for bankruptcy and after the trustee shut it down.  Similarly, a post bankruptcy petition check did not constitute property of the bankruptcy estate and thus was not prosecutable.  The evidence was therefore insufficient.  And because the conspiracy and money laundering counts were based on the substantive bankruptcy fraud counts, the Court reversed those too.

Fourth, the Court reversed the defendant's conviction for conspiracy to harbor a fugitive.  The Court found insufficient evidence of an agreement to commit an act to help harbor or conceal a person for whom a warrant was issued.  The defendant told his wife to tell the fugitive to use cash, but that mere provision of advice was insufficient without providing some sort of material or physical assistance.  The wife then gave false statements to agents about the fugitive and his whereabouts, but that too was insufficient to constitute harboring or concealing.  Lastly, the fact that the fugitive purchased a plane ticket out of the US was insufficient to show that the defendant or his wife harbored or concealed him.

Fifth, the Court found insufficient evidence to support the loss amount at sentencing.  That finding was based on the speculative assumption that every one of 467 credit card disputes filed against the Hindu temple involved a fraudulent charge, even though only 85 of them included records of fraud, from which a government agent extrapolated.  While extrapolation may be permissible in some scenarios, the methodology here assumed absolute fraud in every instance and was based on too much speculation: the government assumed that all 467 disputes involved fraud even without any indication that it did; the government did not know whether any of the disputes were resolved in favor of the Hindu temple; and the defense presented evidence that some of the disputes had been resolved.

Kirby: 1,440 CP Sentence "Equal to" a Life Sentence under the Guidelines and Was Substantively Reasonable

In United States v. Kirby, No. 18-11253 (Sept. 17, 2019) (William Pryor, Jill Pryor, Robreno), the Court affirmed the defendant's 1,440-month child pornography sentence.

The defendant's convictions resulted in an offense level of 43, which produced a life sentence under the Guidelines.  However, the statutes of conviction were capped below life.  Accordingly, under USSG 5G1.2(d), the court was required to run the counts consecutively to the extent they produced a combined sentence "equal to" the Guidelines recommendation of life.  The question here was what numerical sentence is "equal to" life imprisonment.  The district court believed that a life sentence was one of indefinite duration, and it therefore ran the statutory maximum sentences consecutively, which produced a sentence of 1,440 months.  That was the closest numerical sentence to an indefinite sentence that the law allowed.  The Court rejected the defendant's argument that a life sentence was instead 470 months because the Commission had defined it that way for statistical purposes.

The Court also concluded that the sentence was substantively reasonable.  The district court thoroughly discussed the defendant's heinous conduct and creation of child pornography, his breach of public trust as a police officer, and his failure to accept responsibility for his actions. 

Gillis: Federal Kidnapping Does not Satisfy the Elements Clause in the Federal Solicitation Statute

In United States v. Gillis, No. 16-16482 (Sept. 13, 2019) (per curiam) (Jill Pryor, Anderson, Hull), the Court affirmed the defendant's child enticement conviction but reversed his conviction for soliciting another to commit federal kidnapping.

On the enticement count, the Court found the evidence sufficient.  It rejected his arguments that a Craigslist ad did not show his intent to induce a minor to engage in sexual activity; that an undercover agent introduced that idea into the conversation; the defendant abandoned any intent by canceling the first planned meeting with the minor; and, in setting up the second meeting, he sought only to meet with the fictional father.

The Court also rejected his argument that, even if technically inadmissible under Rule 702, the court deprived him of his Fifth and Sixth Amendment right to present a complete defense by limiting the testimony of his expert and prohibiting another expert from testifying at all.  Although the defendant argued that the testimony was necessary to contextualize his online communications and negate the subjective intent element, that was not a compelling reason to make an exception to the expert witness rules of evidence.  The mere fact that their testimony would have been helpful was not enough.

However, in a lengthy analysis, the Court reversed a solicitation conviction under 18 U.S.C. 373 that was predicated on the federal kidnapping offense in 18 U.S.C. 1201(a), because it concluded that federal kidnapping did not satisfy the elements clause in 373 (which includes the same key language as the elements clause in 924(c)(3)(A) but also additional language not in 924(c)(3)(A)).  The Court concluded that, under its precedent in McGuire which was reinforced by Davis, the categorical approach governed 373; and, under that approach, federal kidnapping did not qualify because it is indivisible and, based on non-far-fetched hypotheticals, may be committed by means of inveiglement and/or decoy and then maintained by pyschological force, which was insufficient.

Judge Hull dissented in part, opining that a conduct-based approach applied based primarily on the text of 373's elements clause, the defendant's real-world conduct involved violent force, and kidnapping by confinement qualified even under the categorical approach, in part because there were no successful prosecutions that did not involve physical force capable of causing pain or injury.

Waters: Affirming Wire Fraud Conviction Over Takhalov-Based Challenges

In United States v. Waters, No. 18-11333 (Sept. 10, 2019) (Ed Carnes, Julie Carnes, Clevenger), the Court affirmed the defendant's wire fraud conviction and sentence.

First, the Court found no abuse of discretion in declining to give the Takhalov-based wire fraud instruction proposed by the defense.  The Court found that the proposed instruction, which sought to distinguish between defrauding and deceiving, was an incomplete statement of the law and would have confused the jury.  The Court also found that the proposed instruction did not seriously impair his ability to present his theories of defense.

Second, and applying a deferential standard of review due to the defendant's failure to renew his motion for judgment of acquittal at the close of the evidence, the Court found the evidence sufficient that the defendant intended to harm the victim of the fraud.  The Court rejected the defendant's argument that, under Takhalov, lies about his creditworthiness to a lender did not affect the benefit of the bargain between the parties, as there was ample evidence that these lies sought to cover up an issue that threatened to kill the deal.

Third, the Court rejected the defendant's argument that the district court erred by not making an on-the-record waiver inquiry about his decision not to testify at trial.  Although there is no per se rule requiring that inquiry, the defendant argued this case was exceptional because he was the only person in a position to refute the prosecution's case.  The Court rejected that as a ground for relief because it did not establish his decision to remain silent was involuntarily made.

Lastly, the Court found no plain error with regard to an erroneous factual comment made by the judge after sentence had been imposed.  The judge inaccurately stated that the defendant had gotten a break because the loan had been repaid, when in fact there was never a loan to repay.  But this "slip up" was a "stray comment" at the end of sentencing, not a relevant factual finding.  And the Court found no prejudice because the judge otherwise had an open mind and explained why he thought the defendant did deserve leniency.

Feldman: Upholding Opoid Distribution/Money Laundering Convictions Over Several Challenges but Vacating Sentence due to Alleyne Error

In United States v. Feldman, No. 16-12978 (Aug. 30, 2019) (Julie Carnes, Jill Pryor, Antoon), the Court affirmed the defendants' convictions for distributing schedule II (oxycodone and methadone) and IV (alprazolam and diazepam) substances not for a legitimate medial purpose and money laundering, but it vacated one defendant's sentence under Alleyne.

First, the Court found no abuse of discretion in the denial of a motion to sever.  Although two of the counts pertained only to one of the two defendants, the other defendant had not met her burden to show believe that the jury could not make an individualized determination, and any prejudice was avoided by a limiting instruction.

Second, the Court found no plain error in connection with an isolated statement by the government expert extrapolating from his review of a sample of the defendant's medical files.  The Court found no prejudice by that one stray comment, as it came during his three days of testimony where he otherwise focused entirely on the files he did review. 

Third, the Court found that the defendants had impliedly consented to a mistrial in the first prosecution, and therefore there was no double jeopardy violation in allowing the second trial to proceed.

Fourth, the Court found no reversible prosecutorial misconduct on three points.  First, the prosecutor did not improperly comment on facts not in evidence.  Second, even if the prosecutor improperly inserted an uncharged theory of conviction during closing, there was no prejudice because there was a curative instruction and there was sufficient evidence of guilt.  And, third, the prosecutor's comment that a victim who died had a "butt-load" of drugs in his body was not unfairly prejudicial because, although graphic, the statement was consistent with the evidence.

Fifth, the Court found no abuse of discretion in declining to instruct the jury that it is ethical for a physician to relieve a patient's pain regardless of the victim's history of addiction.  The Court found that this was not a correct statement of the law, and it was a partisan argumentative instruction about facts that the defendant hope the jury would find.

Sixth, the Court found sufficient evidence to support the convictions.  As for the distribution charges, the Court found the evidence sufficient to show that the drugs ingested were prescribed by the defendant and that they were the but-for cause of the victims' deaths.  The Court explained that, under the Supreme Court's decision in Burrage, the schedule II drugs needed to be only one but-for cause of death.  The Court rejected the defendant's argument that it needed to be the sole but-for cause, and it was therefore irrelevant if the schedule IV drugs also played a necessary role in the deaths.

Finally, the Court vacated one of the defendant's 20-year mandatory minimum sentence under 841(b)(1)(C), because the jury's special verdict did not sufficiently reflect that it had found that the schedule II drugs were the but-for cause of the victims' deaths.  Rather, the verdict was consistent with a finding that the schedule II and schedule IV drugs caused their deaths together in the aggregate.  Absent that jury finding, the court erred in imposing the mandatory minimum under Alleyne and Burrage.

Baptiste: Affirming Tax Fraud Conviction and Sentence Over Various Challenges but Remanding for Allocution

In United States v. Baptiste, No. 16-17175 (Newsom, William Pryor, Branch), the Court affirmed the defendant's tax fraud conviction and sentence, but remanded for the defendant to allocute at sentencing.

First, the Court found that the district court did not abuse its discretion under Rule 404(b) by refusing to allow the defendant to put on evidence that another individual had duped others into participating similar schemes.  The defendant argued that this evidence would have shown only that individual's capacity to implement the scheme rather than his character or propensity.  The Court concluded that, because the evidence could have reasonably been viewed either as permissible capacity evidence or as impermissible propensity evidence, there was no abuse of discretion.

Second, the Court rejected the defendant's argument that the prosecutor failed to correct false witness testimony that he was a citizen when in fact he was granted citizenship in exchange for testifying against the defendant.  In addition, while a government witness falsely testified about a date, the government was not required to correct it because it was due to mistake or confusion rather than a willful intent to deceive.  And the Court rejected the defendant's argument that the government failed to disclose a cooperation agreement of a testifying witness because it was speculative and the defendant could not show the testimony was material.  The Court also rejected the defendant's argument that the prosecutor mischaracterized evidence at trial during his closing argument.

Third, the defendant argued that the testimony of the brother to a defense witness—that the defendant had told the witness he would give her a car in exchange for favorable testimony—was incorrectly admitted as a statement against interest.  The Court found it unnecessary to decide that question because it found the testimony harmless in light of overwhelming evidence of guilt.

Fourth, the Court concluded that, even if inadmissible hearsay, the same testimony nonetheless bore "sufficient indicia of reliability" for purposes of an obstruction of justice enhancement at sentencing.  And the district court was not required to make express findings on the record that the testimony was reliable because the record as a whole showed that it was.  The Court also upheld sentencing enhancements based on loss amount and the number and vulnerability of the victims.

Finally, the parties agreed that the district court plainly erred by failing to address the defendant personally and give him an opportunity to allocute, even though the court asked "does the defendant wish to address me," and the attorney answered on the defendant's behalf.

Taylor: NIT Warrant Violated Rule 41(b), Federal Magistrates Act, and Fourth Amendment, but Good-Faith Exception Applied

In United States v. Taylor, No. 17-14915 (Aug. 28, 2019) (Newsom, Tjoflat, Antoon), the Court upheld the denial of a suppression motion based on the good-faith exception.

At issue was a warrant authorizing the government's use of the Network Investigative Technique ("NIT"), a technique that allowed the government to unmask the IP addresses of those who visited a child pornography site on the dark web.  The warrant was issued in the Eastern District of Virginia, but the government used the NIT with respect to the defendant, whose computer was located in Alabama.  As a result, and joining several other circuits, the Court agreed that the NIT warrant violated Rule 41(b) (NIT did not fall into an exception for extraterritorial "tracking device" warrants), the scope of the magistrate's authority under the Federal Magistrates Act, and ultimately the Fourth Amendment.  

However, and joining every circuit to address the question, the Court found that the good-faith exception applied, because the exclusionary rule applied to a warrant that was void ab initio just as it did to other defective warrants.  From the perspective of deterring officer misconduct, relying on a facially valid warrant that later turns out to have been void is no different than relying on a facially valid warrant that later turns to have been based on a dubious probable-cause determination.  Finally, as to the facts of this case, the Court rejected the defendant's argument that the good-faith exception should not apply because the warrant application misled the magistrate that the property to be search was located in the Eastern District of Virginia.  The Court found that, on the facts here, the officers sufficiently disclosed the scope of their intended search.

Judge Tjoflat dissented solely on the last point, arguing that, on the facts of this case, the officers knew or should have known that there was an issue with jurisdiction and that their search would occur outside the district, yet they repeatedly told the magistrate that the search would take place in the district.  A few quotes from his lengthy dissent: "If the law condones this conduct, it makes a mockery of the warrant process." "[W]e should demand the utmost candor in warrant applications.  Before today, I thought we did. . .  I'm not advocating to change the law—the law already requires candor in warrant applications.  I'm asking courts to take this requirement seriously."  "I recognize that my decision would have an unfortunate result. . . . Such a result is the price we pay to protect the Fourth Amendment rights of the public.  Therefore, we must follow the law even when faced with unpleasant outcomes." 

Hawkins: Vacating Drug Convictions Due to Improper Expert Testimony by Case Agent

In United States v. Hawkins, No. 17-11560 (Aug. 20, 2019) (Antoon (M.D. Fla.), Newsom, Tjoflat), the Court affirmed in part but vacated several drug convictions.

First, the Court upheld the denial of a motion to suppress wiretap evidence, rejecting the argument that the wiretap applications did not meet the "necessity" requirement of Title III.  The accompanying affidavits described other investigative techniques already employed and that proved unsuccessful, and the good-faith exception applied in any event.  The Court also upheld the denial of a motion to suppress evidence seized during a traffic stop because there was a probable cause of a traffic violation, namely changing lanes on the interstate without using a turn signal.

Second, the Court rejected the defendant's argument that the evidence at trial on a conspiracy count diverged from the allegations in the indictment, resulting in a constructive amendment or variance.

However, the Court agreed with the defendants that the lead case agent—the government's primary witness at trial—went beyond the bounds of permissible expert testimony by repeatedly providing speculative interpretive commentary about the meaning of phone calls and text messages and by giving his opinions about what was occurring during and in between those communications.  Rather than interpreting drug codes or common practices, which an expert may do, he interpreted unambiguous language in conversations, mixed expert opinion with fact testimony, and synthesized the trial evidence for the jury, straying into speculation and unfettered, wholesale interpretation of the evidence.  The Court concluded that this met all of the requirements of plain-error review, emphasizing that the agent was paraded to the jury as an expert, often went beyond mere lay opinion testimony, and at times played the role of both expert and lay witness, and that the agent was the government's main witness who testified for more than half of the trial.

Stahlman: Affirming Enticement Conviction/Sentence Over Various Challenges

 In United States v. Stahlman, No. 17-14387 (August 19, 2019) (Hull, Jordan, Grant), the Court affirmed the defendants's conviction and sentence for enticing a minor to engage in sexual activity.

First, the Court upheld the exclusion of the defendant's expert testimony on the ground that admitting it would have violated Rule 704(b), which prohibits an expert from opining on the defendant's intent.  That expert would have directly testified that there was insufficient clinical and behavioral evidence that the defendant intended to have real sex with a minor rather than act out a fantasy involving adults.  The Court expressed no view on a whether a more limited, less direct version of expert testimony would have been admissible.

Second, the Court found no reversible error in permitting a special agent to offer lay opinion testimony regarding the age of a girl in a picture posted on Craigslist, what Craigslist is used for, whether the picture would have been "flagged," what the defendant meant in the ad, and the agent's interpretation of email communications between him and the defendant.  Although the court erroneously admitted that lay opinion as expert opinion, that error was harmless because much of his testimony, including which posts would be "flagged," would have been proper lay opinion testimony that was not based on specialized knowledge from his law-enforcement experience.  Moreover, even if some of the testimony required specialized knowledge that should have been disclosed and presented as expert testimony, that was harmless because the court would have admitted it as such even if the defense had file a motion to exclude it, and ample evidence supported the conviction.

Third, the Court rejected the defendant's argument that the evidence was insufficient to prove his intent, or that he took a substantial step toward carrying out that intent.   Although there was an innocent explanation for his conduct, the jury was free to reject it, particularly because the defendant testified at trial.

Fourth, the Court upheld a sentencing enhancement for obstruction based on perjurious testimony at trial.  The Court rejected the defendant's argument that the district court failed to make sufficient factual findings.

Finally, the Court found no reversible error in denying a motion for new trial based on a Brady and Rule 16 violation.  The Court found that, although the court used the wrong legal standard, even if the agent's prior disciplinary history was Brady material, it would not have affected the outcome of the trial had it been disclosed, so any error was harmless.

Brown: Upholding Police Brutality Convictions but Vacated Probation Sentences

In United States v. Brown et al., No. 18-10772, 10972 (Aug. 14, 2019) (William Pryor, Newsom, Branch), the Court affirmed the defendants' convictions but vacated their sentences.

First, the Court found that sufficient evidence supported a police officer's conviction for deprivation of rights under color of law when he beat and tased the passenger in a fleeing vehicle.  Ample evidence supported the jury's finding that the defendant willfully used excessive force under the facts and circumstances.  The Court also found no abuse of discretion in denying the defendant's motion for a new trial under Rule 33 based on a purportedly inconsistent verdict (his codefendants were acquitted) and an enhanced video of the incident that was neither "newly discovered" nor material.

Second, the Court found that sufficient evidence supported the supervising officer's conviction for obstruction of justice when he instructed his subordinates to change their reports to better reflect what happened after a video came to light, and then gave misleading answers to questions by the FBI.   The Court also found that, because he first proposed it, the defendant invited any error in connection with the pattern Allen charge, and the Court rejected his argument that the instruction was unuduly coercive.  And the Court found no abuse of discretion under Rule 606(b) when the court declined to interview a juror who alleged misconduct (e.g., that jurors were biased, bullied into voting guilty, discounted her opinion because she had "crush" on the defendant), or to compel the disclosure of the contents of a juror's post-trial conversation with a spouse of an AUSA about her experience as a juror.

Third, and on a cross-appeal by the government, the Court vacated the defendants' downward-variance sentences of probation.  To calculate the guidelines, the ultimate question was whether the officer used the taser with intent to cause bodily injury.  The district court found that he did not because there was evidence that the officer used it to gain compliance rather than to cause bodily injury.  However, it was possible that the officer intended both to gain compliance and cause bodily injury.  Because it was unclear whether the district court applied an incorrect legal standard to reach its factual conclusion, the Court vacated the sentences and remanded for re-sentencing.

In re Pollard: Denying SOS Under Davis Where Predicate was Armed Bank Robbery

In In re Pollard, No. 19-12538 (July 31, 2019) (Ed Carnes, Tjoflat, Rosenbaum) (per curiam), the Court denied a successive application based on Davis because the 924(c) predicate was for armed bank robbery, which, under Eleventh Circuit precedent, still qualified as a crime of violence under the elements clause in 924(c)(3)(A).  The Court made clear that where the predicate offense qualifies as a crime of violence under the elements clause, the applicant cannot show a reasonable likelihood that he will benefit from Davis, and the application will be denied.

In re Palacios: Denying SOS Under Rehaif Because that Decision Does Not Satisfy Gatekeeping Criteria

In In re Palacios, No. 19-12571 (July 30, 2019) (Wilson, Rosenbaum, Newsom) (per curiam), the Court denied an application to file a successive 2255 motion based on Rehaif.

The Court explained that Rehaif did not satisfy the gatekeeping criteria in 2255(h)(2) because it interpreted a statute; it did not announce a new rule of constitutional law.  And the Supreme Court had not made Rehaif retroactive to cases on collateral review.  

Judge Rosenbaum concurred, reiterating her view that the en banc decision in McCarthan was wrongly decided, and it would wrongly preclude those in the successive posture from filing 2241 petitions based on Rehaif.

In re Navarro: Denying SOS Under Davis Where 924(c) Based in Part on Drug Trafficking Offenses

In In re Navarro, No. 19-12612 (July 30, 2019) (Ed Carnes, Rosenbaum, Black) (per curiam), the Court denied a successive application based on Davis.

Although the applicant ultimately pled guilty only to Hobbs Act conspiracy and 924(c), the plea agreement and factual proffer established that his 924(c) offense was predicated on both Hobbs Act conspiracy and two charged drug trafficking offenses in connection with a stash house robbery.  And the facts for all three predicate offenses were inextricaly intertwined.  Therefore, the Court reasoned, even ifthe  Hobbs Act conspiracy no longer qualified as a crime of violence, his drug offenses fully supported the 924(c) conviction.  The Court noted that this case was distinguishable from In re Gomez because that case involved a jury trial, which returned a general verdict; here, however, there was no uncertainty as to which of the predicate offenses identified in the indictment underlied the 924(c) conviction.

The Court also denied authorization as to a claim about the Sentencing Guidelines.

Judge Rosenbaum concurred because, on this record, it was clear that the 924(c) offense was based in part on drug offenses.  However, she would have ended the analysis there.

Feldman: Affirming Wire Fraud and Money Laundering Convictions/Sentences Over Various Challenges

In United States v. Feldman, No. 17-13443 (July 30, 2019) (William Pryor, Newsom, Branch), the Court affirmed the defendant's wire-fraud conspiracy and money-laundering conspiracy convictions over various challenges.

First, the Court held that Double Jeopardy did not bar the defendant's re-trial for on an alternative theory of liability for which the jury made no finding in his first trial.  Nor did the jury implicitly acquit the defendant on that theory by finding him guilty on the alternative theory.  Moreover, the defendant implicitly consented to the dismissal of the jury without it making a finding.

Second, the Court held that the evidence was sufficient to support his convictions for conspiracy to commit wire fraud and conspiracy to commit money laundering. 

Third, the Court found no constructive amendment of the wire-fraud conspiracy count.  With respect to the defendant's argument that a jury instruction constructively amended the indictment, the Court found invited error because defense counsel responded to the court's instruction by stating "that's fine."

Fourth, the Court rejected the argument that the defendant, who is Jewish, was deprived of due process when the prosecutor analogized his conduct to that of Fagin from Oliver Twist.  The government never referred to ethnicity or any stereotype, but rather made only anodyne references to a literary character as an example.

Finally, the Court found no reversible error at sentencing.  The Court found no clear error in connection with the loss amount and ten-or-more victim enhancement.  The Court found no clear error in an obstruction of justice enhancement based on a finding that the defendant committed perjury in his first trial.  The Court found no error in applying the sophisticated money-laundering enhancement.  Finally, the Court upheld as substantively reasonable an upward variance based on the defendant's lack of remorse and perjury.

Judge Pryor authored a lengthy concurring opinion criticizing the Court's decision in Takhalov, which had vacated the defendant's convictions based on its interpretation of the "scheme to defraud" element of wire fraud.  Although it was unnecessary to apply that interpretation to resolve this appeal, he opined that, depending on how it was interpreted, the decision was likely at odds with the common law of fraud.  He warned the bench and bar to "exercise due care in interpreting our opinion in Takhalov and determining its precedential value."

In re Cannon: Authorizing Successive 2255 Motion Under Davis for 924(o) Conviction but not 924(c) Convictions

In In re Cannon, No. 19-12533 (July 25, 2019) (Tjoflat, Hull, Julie Carnes) (per curiam), the Court authorized a successive 2255 motion under Davis for a 924(o) conspiracy conviction but not for 924(c) convictions.

For the 924(c) convictions, the Court denied authorization because they were based on drug trafficking, substantive Hobbs Act, and carjacking, all of which remain qualifying predicates after Davis. 

For the 924(o) conviction, the Court observed that the offense was based on multiple distinct predicate offenses, most of which remained qualifying predicates, but one of which was Hobbs Act conspiracy, which was still an open question in this Circuit.  Because the jury returned a general verdict, and the crimes seemed inextricably intertwined based on its limited review of the record, the Court found it unclear which crimes served as the predicate for the 924(o) offense.  Therefore, it found that the applicant had made a prima facie showing.  The Court cited In re Gomez for support.  However, the Court cautioned that the movant bore the burden under Beeman to show that the jury likely based its verdict solely on the Hobbs Act conspiracy, not the other qualifying predicates--and the Court found there was some indication that it did not.  The Court also suggested that, where a 924(o) verdict rests on a drug trafficking predicate, there may not be any concern about a possibly defect in a related crime of violence predicate. 

In re Hammoud: Davis Satisfies the Gatekeeping Criteria in 2255(h) for Successive 2255 Motions

In In re Hammoud, No. 19-12458 (July 23, 2019) (William Pryor, Jordan, Hull) (per curiam), the Court authorized a successive 2255 motion based on Davis.

The Court granted the application as to a 924(c) conviction predicated on solicitation to commit murder.  The Court found that the application was properly stated under Davis, not Johnson or Dimaya.  The Court found that Davis announced a new rule of constitutional law that the Supreme Court has made retroactive.  The Court also found that the application was not barred under In re Baptiste because his earlier unsuccessful applications were based on Johnson/Dimaya, and Davis announed new rule.  Finally, the Court found that he made a prima facie showing that his predicate offense may not satisfy the elements clause, as that was an open question.  But don’t get too excited: the Court went out of its way to add that, in the distirct court, the movant has to satisfy his burden of proof under Beeman to show that the conviction was based solely on the residual clause in 924(c)(3)(B).

Weeks: For Beeman Purposes, Court May Consider Legal Landscape Through Direct Appeal

In Weeks v. United States, No. 17-10049 (July 22, 2019) (Anderson, Tjoflat, Jordan), the Court reversed the denial of a 2255 motion based on Johnson, finding that the movant met his burden under Beeman.

The Court held that, where the movant challenged his ACCA enhancement on appeal, the relevant time frame to consider whether the residual clause solely caused the enhancement extends through the direct appeal.   Thus, any precedents decided in that interim period may be considered.  So too may the appellate opinion in that very case, as well as the briefs filed in that appeal.  The Court found that statements in Beeman and Pickett about the question being a "historical fact" were dicta, so they did not preclude a court from considering events through appeal.  In this case, the Court considered intervening legal precedents and the appellate proceedings to conclude that the movant met hits burden as it pertained to Massachusetts convictions.

Tribue: Government Did Not Waive Ability to Rely on New ACCA Predicate in 2255 Proceeding

In Tribue v. United States, No. 18-10579 (July 11, 2019) (Hull, Jordan, Grant), the Court affirmed the denial of a 2255 motion based on Johnson.

First, the Court concluded that the 2255 motion was properly denied because the movant had three prior serious drug offenses under the ACCA.  The Court rejected the movant's argument that the government waived reliance on one of three convictions, which was not identified as an ACCA predicate in the PSI, because the government failed to rely on that conviction at sentencing.  The Court emphasized that the government had no reason to rely on that conviction at the time of sentencing, where there was no objection to the ACCA enhancement.  Because there was no objection, and the government did not expressly disclaim reliance on the prior conviction, the Court distinguished other cases where the Court had found a government waiver.

Whyte: For Sex Trafficking, the Government Need Only Prove a Reasonable Opportunity to Observe the Victim

In United States v. Whyte, No. 17-15223 (July 10, 2019) (William Pryor, Newsom, Branch), the Court affirmed the defendants' sex trafficking convictions.

The Court primarily held that, in light of a 2015 amendment to 18 U.S.C. 1591, the government may prove sex trafficking by establishing only that the defendant had a reasonable opportunity to observe the victim; the government need not also prove that the defendant knew or recklessly disregarded the victim's age.  The Court rejected the defendants' reliance on dictum in case law interpreting the pre-amendment version of the statute.  The Court rejected the defendants' related arguments, including that the Court's reading improperly created a strict liability offense and rendered the statute unconstitutionally vague.

Reviewing for plain error, the Court found no reversible error with regard to the jury instructions.  The Court found that the offense did not require knowledge of the victim's status as a minor, and so therefore that requirement could not be imported into the related conspiracy offense.  And although the instructions omitted the element of a commercial sex act from the numbered list of elements, that omission was not plain error in light of the entirety of the instructions.

The Court upheld the denial of a motion to suppress.  Although the detective's warrant affidavit omitted the victim's criminal history, the defendant failed to argue that he omitted material facts deliberately or with a reckless disregard for truth.

The Court found that limitations on the cross examination of the victim did not violate the Confrontation Clause.  Although the court prevented the defense from attacking the victim's credibility on one point, the defense explored her bias and credibility during a nearly two-day cross examination and elicited testimony that was cumulative to the testimony it was prevented from eliciting.

Finally, the Court upheld the denial of a reduction for acceptance of responsibility because the defendant contested a factual element of guilt at trial.  The Court upheld an undue-influence enhancement because the defendant was ten years older than the victim, creating a presumption of undue influence that he could not rebut.  The Court upheld, on plain error, an enhancement for use of a computer based on their use of smart-phones to communicate with the victim's clients, relying on circuit precedent that found the commentary inconsistent with the text of the Guideline.  The Court rejected the defendant's argument that an enhancement for commission of sex acts constituted impermissible double counting.  And the Court upheld as substantively reasonable the defendants' 300-month and 188-month sentences, both near the bottom of the guideline range.

Arias: Deference to Executive Branch on Legal Validity of Extradition Treaty with Colombia

In Arias v. Warden, No. 18-14328 (July 8, 2019) (Grant, Marcus, Hull), the Court upheld the denial of a habeas petition to block extradition to Colombia.

The petitioner emphasized that the Colombia Supreme Court had declared the extradition treaty unconstitutional.  But both the US and Colombia have continued to act as if the treaty is valid.  The Eleventh Circuit deferred to the State Department's position about the impact, if any, of the foreign court's ruling on the validity of the treaty.  The Court also rejected other challenges to the extradition based on the facts of the case.

Khan: No Per Se Deficient Performance by Refusing Court Instruction to Obtain Foreign Approval for Video Deposition

In Khan v. United States, No. 18-12629 (July 3, 2019) (William Pryor, Newsom, Branch), the Court affirmed the denial of a federal defendant's ineffective assistance of counse claim.

The attorney disregarded a court instruction to obtain the official consent of the Pakistani government to conduct video depositions on its soil.  The Court first rejected the movant's argument that failure to follow a court order constitutes deficient performance per se, rejecting any such bright-line rule.  Here, the Court found that the attorney made a reasonable strategic decision based on all of the circumstances, as he made significant efforts to obtain the depositions, the court did not impose an affirmative duty on the lawyer, and in any event that duty would be owed to the court, not the client.  The Court also found that the movant failed to prove prejudice from any deficient performance because there is no indication that the Pakistani government would have granted the lawyer's request, and the evidence of guilt was overwhelming.

Smith: No Confrontation Clause Violation Because Government Made Good-Faith Effort to Locate Witness Who Testified by Video Deposition

In United States v. Smith, No. 17-13265 (July 2, 2019) (Hull, Julie Carnes, Rosenbaum), the Court affirmed the defendants' alien smuggling convictions.

The primary issue on appeal was whether the district court violated the Confrontation Clause by admitting the videotaped deposition of a deported government witness (an alien smuggled on the defendants' boat).  In determining whether the witness was "unavailable" for purposes of the Confrontation Clause and the Rules of Evidence, the Court asked whether the government had made a good-faith effort to obtain the witness' presence at trial, and that was a question of "reasonableness."  The government was not required to make every conceivable effort to locate the witness.  Although the witness in this case was temporarily inside the United States at the time of trial, she had no cell phone or U.S. address, was illegally in the U.S., and had absconded from the trial court's jurisdiction to avoid detention and deportation.  And although the government sent a trial subpoena to the witness through her former attorney and her boyfriend, and the attorney reported back that she would cooperate, the witness still refused to appear.  Analyzing the particular facts and circumstances of the government's efforts, the Court found that the government made a reasonable good-faith effort to obtain her presence at trial.

The Court also concluded that the prosecutor did not make inappropriate comments during closing argument.  The prosecutor's comment that the defendant's prior alien smuggling conviction occurred in West Palm was correct and was made in response to the defendant's argument in closing that it would make no sense for an alien smuggler not to take the most direct route from the Bahamas to Florida.

Judge Rosenbaum issued a 43-page dissent on the Confrontation Clause issue, which, in turn, generated a 25-page response by the majority.   In her view, the government did not make a good-faith effort because it failed to pursue a promising lead it had reason to believe might help locating the missing witness.  Specifically, it failed to conduct a database or online search for the address of the witness' boyfriend (the government had called and texted the boyfriend to no avail). The two opinions debate the governing Supreme Court opinions on unavailability, whether the government made a good-faith effort under the facts of the case, and the relevance of other circuit decisions.

Whatley: Reversing Grant of Habeas Claim on Mitigation Claim and Affirming Denial of Habeas on Shackling Claim

In Whatley v. Ga. Diagnostic and Classification Center, No. 13-12034 (June 20, 2019) (Tjoflat, Hull, Jordan), the Court reversed the partial grant of habeas relief and affirmed the partial denial of habeas relief in a capital case.

The first claim, on which the district court granted relief, was that the trial lawyer was ineffective for failing to investigate and present mitigating evidence at the penalty phase.  The Court reversed because, on the prejudice prong, the district court failed to defer to the state supreme court's decision under AEDPA, applying de novo instead and re-weighing all of the evidence for itself.  Rather than remanding the case for the district court to conduct the correct analysis, the Court did so for itself and found that the state court's decision was not unreasonable.

The second claim, on which the district court denied relief, was that the trial lawyer was ineffective for failing to object to use of shackles during the sentencing hearing.  Although prejudice is typically presumed by the use of shackles when that claim is raised on direct appeal, the Court declined to presume such prejudice here, because a substantive shackling claim was procedurally defaulted on direct appeal, and so it was the defendant's burden to prove prejudice on collateral review under Strickland.  In that regard, the Court found that the defendant could not show that the state supreme court's decision declining to find actual prejudice was unreasonable.

Judge Jordan dissented as to the shackling claim, opining that the state court failed to conduct the prejudice inquiry with proper regard for the inherent harm that results from visible shackling.  He emphasized that the state court did not take into account the fact that the defendant wore shackles not only while taking the stand but also while being forced to re-enact the murder in front of the jury, with the prosecutor playing the director and victim in that re-enactment.  And he argued that the state court failed to analyze how the shackles may have affected the juror's views regarding his propensity for future violence, one of the major theme's of the prosecutor's closing argument.