Smith: State PD Not Ineffective When Correctly Advised Client About State Plea Deal

 In United States v. Smith, No. 19-12686 (Hull, William Pryor, Marcus), the Court affirmed the defendant’s felon-in-possession conviction and sentence.

As to the conviction, the defendant argued that his state public defender was ineffective during state plea negotiations, and that the federal indictment should be dismissed.  Assuming without deciding that the Sixth Amendment attached during state plea negotiations, the Court determined that there was no ineffective assistance of counsel.  There was no deficient performance because the state public defender correctly communicated, and reasonably advised the client to accept, the state prosecutor’s 5-year plea deal, which would have resulted in the federal prosecutor dropping the federal charge carrying a 15-year mandatory minimum.  And there was no prejudice because the client was adamant that he would not have accepted a 5-year deal in state court because he wanted to go to trial, and he believed that the federal prosecutor was bluffing about filing charges.

As to the sentence, the Court affirmed the ACCA sentence because its prior precedent in Smith established that Florida sale of cocaine under 893.13 was a “serious drug offense.”

Santos: 2255 Movant Could Not Satisfy Burden Under Beeman to Show Reliance on Residual Clause

In Santos v. United States, No. 17-14291 (Marcus, William Pryor, Hull), the Court affirmed the denial of a 2255 motion challenging an ACCA enhancement in light of Johnson.

The Court held that the movant could not meet his burden to establish that the sentencing judge relied solely on the residual clause, as required by Beeman.  The ACCA enhancement had been based in part on a prior Florida battery conviction.  However, the sentencing record was silent as to which definitional clause was used, and the case law at the time of sentencing would have allowed the judge to impose the enhancement under either the residual clause and the elements clause.  Finally, although the district court denied the motion before Beeman was decided, the Court determined that a remand would be futile.  Unlike the Eleventh Circuit’s earlier decision in Pickett, the district court here had already made a finding that the record was unclear as to which clause had been used, and the district court handling the 2255 motion was not the original sentencing judge.  Thus, the Court did not decide whether the “touch or strike” aspect of Florida battery was divisible, and it stated that this question remains an open one.

Taylor: Dual-Object Drug Conspiracy Including Crack Element is a "Covered Offense" Under Section 404 of the First Step Act

 In United States v. Taylor, No. 19-12872 (Grant, Marcus, Axon (N.D. Ala.)), the Court vacated the denial of a  motion for a reduced sentence under Section 404 of the First Step Act.

 The Court held that a dual-object drug conspiracy count including both a crack and a powder element is a “covered offense.”  Even though the Fair Sentencing Act did not modify the statutory penalties for the powder offense, it did modify the statutory penalties for the crack offense.  And that satisfied the “covered offense” definition in Section 404(a).  The district court therefore had discretion to reduce the sentence, though it is not permitted to conduct a plenary or de novo re-sentencing proceeding, and it cannot reduce the sentence based on changes in the law beyond those mandated by the Fair Sentencing Act.   

Graham: Upholding Conviction Under Marinello for Obstructing IRS Collection Action

 In United States v. Graham, No. 18-15299 (Dec. 4, 2020) (Grant, Marcus, Julie Carnes), the Court affirmed the defendant’s conviction for obstructing the IRS.

In addition to proving that the defendant knowingly and corruptly tried to obstruct or impede the administration of the tax laws, the Supreme Court’s decision in Marinello also required it to prove a nexus between the defendant’s conduct and a particular administrative proceeding.  The Court held that the IRS’s extensive collection activities qualified as such a proceeding, and there was otherwise sufficient evidence to support the conviction based on the defendant falsifying a bill of exchange to the IRS.

The Court also rejected the defendant’s evidentiary challenges.  It reviewed the exclusion of evidence for plain error because he failed to make a proffer about what the evidence would show.  First, the Court found no plain error in limiting a defense witness’ testimony because  the defendant was permitted to present his defense, and he failed to draw a connection between that defense and the limits placed on the witness.  Second,  there was no error under Rule 404(b) in admitting the defendant’s prior misdemeanor conviction for failing to file a tax return.  Third, there was no plain error in striking an answer the government’s expert gave on cross-examination because it did not affect his substantial rights.  And, finally, there was no error in excluding evidence of the defendant’s other efforts to comply with the IRS because good character evidence is inadmissible.

 

Watkins: Reversing Order Granting Suppression Based on the Inevitable Discovery Exception

In United States v. Watkins, No. 18-14336 (Dec. 3, 2020) (Ed Carnes, Luck, Marcus), the Court reversed an order granting the defendant’s motion to suppress on the government’s appeal.

The government conceded that it violated the Fourth Amendment when a GPS tracking device placed inside an intercepted package re-activated inside the defendant’s home.  However, the Court concluded that the inevitable discovery exception to the exclusionary rule applied.  The Court reasoned that, based on leads and evidence already in the agents’ possession, there was a reasonable probability that the evidence would have inevitably been discovered because the agents would have conducted the same knock and talk with the same result.  The district court erroneously disregarded the magistrate judge’s credibility findings without holding a new hearing.

Johnson: Upholding 922(g)(9) Conviction Against Rehaif Challenge

In United States v. Johnson, No. 19-10915 (Rosenbaum, Martin, Tallman (CA9)), the Court affirmed the defendant’s conviction under 18 U.S.C. 922(g)(9) for being a domestic-violence misdemeanant in possession of a firearm.

In a lengthy opinion, the Court held that, after Rehaif, the defendant must know three things to violate 922(g)(9): 1) he was convicted of a misdemeanor; 2) to be convicted of that crime, he had to knowingly or recklessly use at least the “slightest offensive touching”; and 3) he knew that the victim was his spouse.  Those are the facts that render his offense a “misdemeanor crime of domestic violence.”  And because the record—namely, a bench trial stipulation and undisputed PSI facts about a prior Florida battery conviction—established the defendant’s knowledge of all three points, he could not show that his substantial rights were affected under the third prong of plain-error review.   Because he knew the facts that established his unlawful status, it was no defense that he did know that status prohibited his firearm possession.  Nor was it a defense that his civil rights were never abrogated.  The Court also found no plain error with respect to the defendant’s equal protection and commerce clause claims.

Judge Martin dissented.  She believed that Rehaif requires the government to prove that the defendant knew his conviction qualified as a “misdemeanor crime of domestic violence” under federal law.  She also believed that the government must prove knowledge of that status as the time of the firearm possession; by referring only to the stipulation and PSI facts, the majority instead looked to the defendant’s knowledge of that status at the time of the federal trial.  Finally, she believed that, given the absence of such knowledge and the complexity of the “misdemeanor crime of domestic violence” analysis, plain error was satisfied, and the majority created a split with a Seventh Circuit decision.