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Grant, Siler) (per curiam), the Court affirmed the defendants' sentences (after re-issuing what was previously an unpublished opinion).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.