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.