Sharp: Given Intervening Change in Law, No Waiver by the Government for Failing to Rely on a Prior Conviction for ACCA Purposes at Sentencing

In United States v. Sharp, No. 20-12574 (Dec. 28, 2021) (Wilson, Lagoa, Martinez (S.D. Fla.)), the Court, in a government appeal, vacated the district court’s non-ACCA sentence and remanded for re-sentencing.

At sentencing, the government failed to rely on the defendant’s prior Georgia conviction for making terroristic threats as an ACCA predicate because, at that time, circuit precedent had held that it categorically did not qualify as an ACCA predicate.  However, ten days after sentencing, the Eleventh Circuit modified that precedent and held that the Georgia statute was divisible and so could qualify.  In this case, the Eleventh Circuit held that, in light of the intervening change in the law, the government did not waive its ability to rely on that prior conviction by failing to rely on it at sentencing.  The Court found it to be "too far a stretch" to require the government to object to binding precedent or anticipate future changes in the law.  The Court remanded for the district court to receive evidence and determine whether the defendant’s particular conviction qualified under the ACCA.

Fleury: Upholding Interstate Threats/Cyberstalking Convictions Over Various Challenges

In United States v. Fleury, No. 20-11037 (Dec. 16, 2021) (Wilson, Rosenbaum, Hull), the Court affirmed the defendant’s convictions for transmitting interstate threats and cyberstalking.

First, the Court rejected the defendant’s facial and as-applied First Amendment challenges to the cyberstalking statute.  Joining every circuit to address the issue, the Court held that the statute was not facially overbroad because the elements did not target expressive speech but rather unprotected conduct involving an intent to kill, injure, harass, or intimidate.  And the Court rejected the defendant’s as-applied challenge because his conduct did not involve a matter of public concern but rather “true threats” to the families of the victims of the Parkland shooting.

Second, the Court held that the indictment sufficiently charged the cyberstalking counts because it tracked the statutory language and otherwise provided adequate notice of the charges.

Third, the Court held that the evidence was sufficient for a reasonable jury to find that the defendant had the subjective intent to transmit interstate threats and to cyberstalk the victims.  Although the defense expert testified about the defendant’s autism, the jury heard from the government’s competing expert and was free to weigh assess the experts’ credibility as it saw fit.

Fourth, the Court held that the district court did not plainly err by failing to sua sponte preclude the government from introducing evidence relating to the defendant’s attraction to serial killers, because it helped the jury understand the motive for his actions, and the instructions ensured that the jury could convict only for the crimes with which he was charged.

Finally, as to the cyberstalking instruction, the Court rejected the defendant’s argument that the district court was required to instruct the jury that the government had to prove his subjective intent to communicate a true threat, since the plain language of the statute already required proof that the defendant intended to harass or intimidate.  And the Court found no abuse of discretion when the district court modified the defendant’s theory of defense instruction because, while his theory contained a correct definition of a “true threat,” it was not the only correct definition from the Supreme Court’s decision in Virginia v. Black, and the court’s instructions as a whole adequately covered the defendant’s subjective-intent theory of defense.

Telcy: Sentence Reduction Under Section 404 of First Step Act Is not a "New Judgment" for Second-or-Successive Purposes

 

In Telcy v. United States, No. 19-13029 (Dec. 10, 2021) (Wilson, Lagoa, Brasher), the Court affirmed the dismissal of a 2255 motion as an unauthorized second or successive motion.

The issue on appeal was whether a sentence reduction under Section 404 of the First Step Act qualifies as a “new judgment” for purposes of the bar on second or successive habeas 2255 motions, and thus resets the clock.  The Court held that it does not.  The Court emphasized that Section 404 did not authorize courts to conduct a plenary, de novo resentencing or impose a new judgment.  Rather, as a matter of legislative grace, Section 404 only authorizes a sentence reduction for certain covered offenses, and it does not require the court to consider the 3553(a) factors or hold a hearing with the defendant.  For those reasons, and applying the Court’s precedents, it held that a sentence reduction under Section 404 did not give rise to a “new judgment” for purposes of the bar on second or successive 2255 motions.

Litzky: Exclusion of Expert Testimony Did Not Violate Constitutional Right to Present a Defense

In United States v. Litzky, No. 20-10709 (Nov. 23, 2021) (Jordan, Newsom, Ed Carnes), the Court affirmed defendant's convictions for possessing child pornography, producing it, and conspiring to do the same.  

Defendant raised two issues on appeal: (1) the district court violated her constitutional right to present a defense by excluding expert testimony related to her intellectual disability; and (2) her below-Guidelines sentence was substantively unreasonable. 

The district court found that the expert's proffered testimony failed to focus on the defendant's specific state of mind at the time of the charged offenses.  Therefore, because it failed to show how the defendant was unable to form the required mens rea, it would only serve to confuse the jury.  The Court agreed, finding that defendant's proffered expert testimony was not keyed to any legally acceptable defense theory.   The Court found that the defendant had failed to demonstrate a compelling reason for making an exception to the expert witness rule in FRE 702.  It reasoned that the defendant's proffered expert testimony was more akin to justification and excuse rather than a legally acceptable theory of lack of mens rea.  The Court also found that defendant failed to show that her proffered expert testimony bore persuasive assurances of trustworthiness as required by Rule 702.  "As the Supreme Court [has] explained, the Constitution leaves to the judges who must make these admissibility decisions wide latitude to exclude evidence that poses an undue risk of confusion of the issues.”        

The Court also affirmed defendant's 30-year sentence, which was 600 months below the Guidelines' recommendation.  The district court explained, in a 17-page order, why it believed a downward variance of 50 years--but no more--met the goals of sentencing.  The Court found the district court's determination well within the bounds of its discretion.  

Grady: Affirming Convictions and Sentences Over RFRA Objections

In United States v. Grady, No. 20-14341 (Nov. 22, 2021) (Branch, Grant, Ed Carnes), the Court affirmed defendants' convictions and sentences for conspiracy, destruction of property on a naval installation, depredation of government property, and trespass.  

Defendants, members of the Plowshares Movement--equipped with spray paint, bolt cutters, hammers, blood, banners, crime scene tape, Go-Pro cameras, and others tools--illegally entered the Kings Bay naval base, intending to engage in symbolic disarmament as part of their faith.  They spray-painted numerous anti-nuclear and religious messages at various locations inside the base, poured bottles of human blood at various locations, taped an "indictment" outlining their complaints to a door of one of the buildings, defaced various monuments within the base, and entered restricted areas to hang banners protesting the morality of nuclear weapons and pray.  They were arrested and indicted on charges of: conspiracy; destruction of property on a naval installation; depredation of government property; and trespass.

All defendants moved to dismiss the indictment, arguing that their prosecution violated the Religious Freedom and Restoration Act ("RFRA").  Specifically, they asserted that their actions at the Kings Bay naval base were “in accordance with their deeply held religious beliefs that nuclear weapons are immoral and illegal,” and the government’s prosecution of them substantially burdened their religious exercise in violation of RFRA. They maintained that, under RFRA, the government could not show that the decision to charge the defendants was the least-restrictive means of furthering its compelling interests in the safety and security of the base.  The district court denied their motion.   

On appeal, this Court affirmed the district court.  The Court first noted that the only prong of the RFRA analysis in dispute was the fourth prong: whether the government met its burden of demonstrating that criminal prosecution of the defendants was the least-restrictive means of furthering its significant compelling interests in the safety and security of the naval base, naval base personnel, and naval base assets.  In order to be a viable least-restrictive means for purposes of RFRA, the proposed alternative needs to accommodate both the religious exercise practiced in this case—unauthorized entry onto the naval base and destructive actions, including spray painting monuments, doors, and sidewalks, pouring human blood on doors and other areas, hammering on a static missile display, hanging banners and crime scene tape, as well as removing and partially destroying signage and monuments around the naval base—and simultaneously achieve the government’s compelling interests in the safety and security of the naval base, naval base assets, personnel, and critical operations.  The Court found that the defendants failed to proffer a least-restrictive means that would simultaneously accommodate their religious exercise while protecting the government’s compelling interests, as was their burden to proffer.

The Court further held that the district court did not err in holding the defendants jointly and severally liable for the full amount of restitution.  Because the losses in question resulted from acts which were part of the conspiracy, the district court had the authority to hold all defendants jointly and severally liable for the full amount of restitution.    

The Court also held that the district court did not err in denying a reduction for acceptance of responsibility to the defendants.  The defendants argued that they went to trial only because of their RFRA defense, and maintained that they never denied engaging in the conduct in question.  But the Court held that the district court did not clearly err in finding that neither defendant had clearly demonstrated acceptance of responsibility because they continued to deny the illegality of their actions and put the government to its burden of proof.  Additionally, because the district court made a Keene finding, any error in denying acceptance of responsibility would have been harmless.       

The Court also held that the district court did not err when it used the total damages amount to enhance one defendant's base offense level under U.S.S.G. § 2B1.1(b)(1)(C).  The Court found that the evidence at trial supported the enhancement.    

The Court also held that the district court did not err in failing to address one defendant's RFRA-related sentencing argument in the context of 18 U.S.C. § 3553(a).  

Finally, the Court held that the district court did not abuse its discretion in failing to give one defendant's requested mistake-of-fact jury instruction.  The government had to prove that the defendants acted consciously and deliberately, not that they knew or believed their actions were illegal.  Therefore, because mistake of fact is not a valid defense, the district court did not abuse its discretion in declining to give the requested instruction.    

Ramirez: Vacating Terrorism-Enhancement Sentence and Remanding

In United States v. Ramirez, No.  20-10564 (Nov. 1, 2021) (Wilson, Rosenbaum, Hull), the Court vacated the defendant's sentence and remanded.  

Defendant purchased firearms and firearm parts and components, often through straw purchasers, and sold them throughout Colombia.  Six firearms found themselves into the hands of members of the National Liberation Army ("ELN"), which the U.S. State Department has designated a foreign terrorist organization.  Defendant pleaded guilty to knowingly providing material support to the ELN, in violation of 18 U.S.C. §§ 2339B(a)(1) and 2.  

At sentencing, defendant challenged the application of the terrorism enhancement under U.S.S.G. § 3A1.4.  He argued that § 3A1.4 required that the government prove not only his material support to the ELN, but also that his offense conduct was "calculated" to influence, affect, or retaliate against the Colombian government.  Defendant claimed that his motive was to profit financially, not to retaliate against the Colombian government.  The district court overruled defendant's objections, suggesting that the court believed that the mere fact that defendant pleaded guilty to knowingly providing material support to a known terrorist organization per se satisfied § 3A1.4's "calculated" or specific intent requirement.  

On appeal, the Court vacated the application of the § 3A1.4 enhancement.  The structure of § 3A1.4 establishes two separate bases for applying the enhancement: (1) when the defendant's offense "involved" a federal terrorism crime; or alternatively, (2) when his offense was "intended to promote" a federal terrorism crime.  The Court focused on the first prong--namely on the meanings of "involved" and "federal crime of terrorism"--and whether defendant's offense or relevant conduct was "calculated" to influence, affect, or retaliate against government conduct.  The Court, agreeing with its sister circuits, found that "calculated" imposes an intent requirement.  That is, the government must show that the defendant's offense was planned to influence, affect, or retaliate against government conduct, even if that was not the defendant's personal motive.  

Here, the district court made no factual findings as to the § 3A1.4 enhancement, and erred in assuming that an offense under §2339B(a)(1) necessarily includes the additional requirement found in § 2332b(g)(5)(A) that the defendant's offense be "calculated" to influence, affect, or retaliate against government conduct.  Whether a defendant's offense is "calculated" to influence, affect, or retaliate against government conduct is a highly fact-specific inquiry that requires an examination of the record as a whole.  Because no such fact finding was conducted here, the district court erred in applying § 3A1.4's terrorism enhancement.  As such, the Court vacated defendant's sentence and remanded for resentencing and fact findings.                  

Wheeler: Affirming and Reinstating Fraud Convictions Over Numerous Challenges

In United States v. Wheeler, No. 17-15003 (Oct. 21, 2021) (Wilson, Lagoa, Brasher) (per curiam), the Court reversed a judgment of acquittal for two defendants and affirmed the convictions and sentences for three defendants involved in a telemarketing scheme that tricked investors into making stock purchases.

First, notwithstanding the district court’s judgment of acquittal, the Court found that the evidence was sufficient to support the substantive mail and wire fraud convictions.  Although not overwhelming, and some misrepresentations to the investors did not affect the nature of the bargain under Takhalov, the evidence was sufficient for a jury to find that the defendants intended to defraud the investors.  The evidence was also sufficient as to conspiracy because, even if they did not know the extent of the fraud, the evidence was sufficient that the defendants knew the objective of the conspiracy and decided to join it.

Second, the Court found that the evidence was sufficient to support the convictions for the other three defendants.  The evidence was sufficient that one defendant aided and abetting a transaction, even if he did not personally participate in it, by discouraging the victim from going to the authorities.  As to another count, the evidence was sufficient that the victim relied on the defendant’s statements.  As to another defendant, the evidence was sufficient that the defendant participated in the scheme even though he did not participate in the transactions or have any contact with the victims.  And the evidence was sufficient that his misrepresentations went to the nature of the bargain and were false.

Third, although the prosecutor said in closing that an aspect of the court’s theory of defense instruction was “not the law,” the Court held that this remark, when considered in context, was not improper.  Based on the court’s statements during the charge conference, which distinguished between the offense elements and the theory of defense, the prosecutor could have reasonably believed that his comments were proper.

Fourth, the Court found no abuse of discretion in admitting certain evidence at trial.  A government informant did not give an improper lay opinion by testifying about jargon used in recorded conversations and how “boiler rooms” typically functioned based on his own experience.  Victim testimony about the amount of their losses and its impact on them was properly admitted because it illustrated that the defendants learned about their victims’ personal lives and then exploited them, and the court instructed the jury not to be influenced by sympathy or prejudice.  Although a close question, the court did not abuse its discretion by allowing the government to impeach a defense witness on a collateral matter in order to label a defendant a drug dealer, since the line of questioning was relevant to establish that the witness might be biased.  Finally, the district court did not abuse its discretion by instructing the jury on overlapping conspiracies because the instruction merely said that the participants overlapped and did not permit the jury to lump the two conspiracies together.

As to sentencing, the district court did not clearly err by applying the sophisticated-means or managerially-role enhancements.  And, as to loss, the Court held that a defendant is liable for the total amount of loss of the conspiracy when she furthers its overall objective, and there was evidence that the defendant did so.

Judge Wilson, joined by Judge Lagoa, concurred to express concern with the prosecution’s conduct at closing and throughout the trial.  Although it did not rise to the level of misconduct, he opined that it fell short of the high level of professionalism he expected prosecutors to embody.  The district court was required to spend much effort “corralling the prosecution’s often wayward tactics,” and “the prosecution frequently appeared to ignore the court’s rulings when it disagreed with them.”

Giron: a District Court Need Not Consider 3553(a) Where It Finds No "Extraordinary and Compelling" Reasons for Compassionate Release

In United States v. Giron, No. 20-14018 (Newsom, Lagoa, Anderson) (Oct. 13, 2021), the Court--without oral argument or defense counsel--affirmed the denial of a pro se motion for compassionate release.

First, the Court held that the district court did not err by relying on the policy statement in USSG 1B1.13.  The Court held in Bryant that the policy statement binds district courts in their determination as to whether “extraordinary and compelling” reasons exist.  The defendant’s medical conditions, including high cholesterol, high blood pressure, and coronary artery disease, were manageable in prison notwithstanding the pandemic, and so he did not satisfy the criteria in Application Note 1(A).  And the defendant could not invoke the catchall provision in Application Note 1(D) because, under Bryant, only the BOP Director could invoke that provision.

Second, and relying on its recent decision in Tinker, the Court held that it is not an abuse of discretion for a court to deny relief based solely on a lack of “extraordinary and compelling” reasons, without considering danger to the public or the 3553(a) factors.  Before granting relief, a court must find that all three criteria are satisfied, so it may deny relief based on a lack of extraordinary and compelling reasons alone, without considering the 3553(a) factors.

Perry: Affirming Drug Distribution Convictions and Sentences Based in Large Part Upon DEA Task Officer Expert Testimony

In United States v. Perry, No. 16-11358 (Sept. 29, 2021) (Grant, Marcus, Axon (N.D. Ala.)), the Court affirmed the defendants' convictions and sentences.  

Defendants were indicted on numerous charges related to their involvement in a multi-year, multi-state drug distribution organization--namely, conspiracy to possess with intent to distribute in excess of 5kg of cocaine and in excess of 280g of cocaine base.  They proceeded to trial and were found guilty.  Defendant Perry was sentenced to 240 months in prison while Defendant Ragin was sentenced to 180 months in prison. 

On appeal, Defendant Perry argued that the district court erroneously admitted the testimony of DEA task force officer Lee because Lee was not properly qualified as an expert, and because his opinion testimony improperly blurred the line between expert and lay witness testimony and drew impermissible inferences for the jury.  Lee was qualified as an expert "in coded drug language and methods of trafficking, as well as the manufacture of crack cocaine from powder cocaine," and testified extensively as to the meaning of certain words and phrases used in numerous intercepted phone calls that were introduced at trial.  

The Court first found that Lee was properly qualified as an expert in interpreting code words for drugs--he had over 19 years of experience in law enforcement and formed his opinions using reliable methods and based on experience, general knowledge, and familiarity with the intercepted communications and their context.  As to Perry's second objection to Lee's testimony--that it invaded the province of the jury--the Court, reviewing for plain error, found that while portions of Lee's testimony were improper--where he crossed the line from interpreting drug language to opining about plain language, speculating, summarizing the evidence, or telling the jury what inferences to draw from the conversation--Perry failed to establish any plain error that affected his substantial rights.  The Court did note, however, that the trial court and prosecutor "should have taken greater care to cabin the case agent's expert testimony to his areas of expertise and to make clear to the jury in what capacity he was testifying."  But, the Court also cautioned that "it remains the duty of litigators to object contemporaneously when offending testimony is offered so that the trial court will have the opportunity to exercise its critical gatekeeping function when it matters most."    

Defendant Perry next objected to the admission of a recording of a cell phone call, which included out-of-court statements made by third parties who were not called to testify at trial.  The Court found no abuse of discretion in the admission of this call.  

Defendant Perry also objected to 50 additional conversations for the first time on appeal, arguing that it was not necessary for defense counsel to make the same objection over and over again during trial because the trial court had already made its ruling about one of the calls.  The Court disagreed, noting that a defendant is required to raise specific objections to specific questions and specific answers as they were offered.       

Defendant Perry also objected to the government's introduction of Rule 404(b) evidence involving events that fell outside of the charged conspiracy--specifically, the factual basis surrounding Perry's earlier federal conviction for the distribution of crack cocaine.  The district court allowed the evidence, but to limit its prejudicial impact, directed the parties to omit any reference to Perry having been convicted or having entered a guilty plea.  The Court found no error in the admission of this evidence because, by pleading not guilty, Perry made intent a material issue. 

Defendant Ragin argued that the district court should not have considered the drugs and firearms found in his residence when officers arrested him as "relevant conduct" during sentencing because his arrest fell outside the timeline of the conspiracy, and because the details of his arrest were admitted only as 404(b) evidence at trial.  The district court used the drugs and firearms found during Ragin's arrest to calculate his total offense level.  The Court found no error in the district court's consideration of the drugs and firearms found in Ragin's residence because the district court found that the drugs and firearms were part of a single course of conduct and were not an isolated, unrelated event.      

Defendant Ragin also argued that the district court erred by not sua sponte granting him a two-level minor-role reduction.  Reviewing for plain error, the Court found no error because it is insufficient to point to the broader criminal scheme when the district court determines a sentence by zeroing in on a defendant's actual conduct alone.  

Of note, the Court only considered the sentencing issues raised in Ragin's brief, finding his adoption of the arguments raised in his co-defendants' brief to be inadequate--it did not comply with the requirements of 11th Cir. R. 28-1(f).  

Somers: Certifying Questions on Florida's Assault Statutes to the Florida Supreme Court

In Somers v. United States, No. 19-11484 (Sept. 28, 2021) (Jill Pryor, Anderson, and Marcus), the Court granted the petition for rehearing, vacated its previous opinion and judgment, substituted this opinion in its place, and certified to the Florida Supreme Court the following two questions about the nature of Florida's assault statutes:

1. Does the first element of assault as defined in Fla. Stat. § 784.011(1) -- "an intentional, unlawful threat by  word or act to do violence to the person of another" -- require specific intent?

2. If not, what is the mens rea required to prove that element of the statute?

The Court reconsidered its opinion after the Supreme Court's decision in Borden v. United States, 141 S. Ct. 1817 (2021).  In supplemental briefing, movant argued that Borden abrogated Turner v. Warden Coleman FCI, 709 F.3d 1328 (11th Cir. 2021)--wherein the Court held that a Florida conviction for aggravated assault categorically qualified as a violent felony under the ACCA's elements clause--because Florida aggravated assault is not a specific-intent crime.  In response, the government argued that the specific intent to threaten another is an element of Florida aggravated assault.  Because the Florida Supreme Court has not answered the question of whether Florida aggravated assault requires specific intent, or something just like it, and Florida's lower courts are split on the mens rea required by the Florida assault statutes, the Court certified the above questions to Florida's Supreme Court for its consideration.    

Tinker: No Particular Order of Analysis Required for 3582(c)(1)(A) Motions

In United States v. Tinker, No. 20-14474 (Sept. 28, 2021) (Wilson, Newsom, Branch) (per curiam), the Court held that a district court does not procedurally err when it denies a request for compassionate release based on the 18 U.S.C. 3553(a) sentencing factors (or U.S.S.G. 1B1.13's policy statement) without first explicitly determining whether the defendant could present "extraordinary and compelling reasons."  

The Court noted that nothing on the face of 18 U.S.C. 3582(c)(1)(A) requires a court to conduct the compassionate-release analysis in any particular order.  Therefore, nothing requires a court to first find "extraordinary and compelling reasons" for release before considering the 18 U.S.C. 3553(a) factors or U.S.S.G. 1B1.13's policy statement.  Under 3582(c)(1)(A), the court must find that all necessary conditions are satisfied before it grants a reduction--i.e., support in the 3553(a) factors, extraordinary and compelling reasons, and adherence to 1B1.13's policy statement.  The absence of even one would foreclose a sentence reduction.  Therefore, a district court does not err where, as occurred  in this case, it assumes that "extraordinary and compelling reasons" exist in the 3582(c)(1)(A) context.         

The Court further found no error in the district court's analysis of the 3553(a) factors.  

Watkins: Reversing Order Granting Suppression and Remanding With Instructions

In United States v. Watkins, No. 18-14336 (Sept. 16, 2021) (Luck, Ed Carnes, Marcus), on remand from the en banc Court, the Court reversed and remanded to the district court for further proceedings.  

The Court originally reversed the district court's order granting the defendant's motion to suppress on the government's interlocutory appeal.  Though the government conceded that it violated the Fourth Amendment when GPS tracking devices placed inside an intercepted package re-activated inside the defendant's home, the Court held that 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 case was then reconsidered en banc.  The en banc Court held that the standard of proof that the government must meet in order to establish that evidence would have been inevitably discovered is the preponderance of the evidence, not a "reasonable probability."  The en banc Court remanded the case back to the original panel for further proceedings consistent with its holding.  

On remand, the Court, applying the preponderance of the evidence standard--whether the evidence more likely than not would have been discovered--concluded that it would have been.  In so holding, the Court found that the district court clearly erred when it disregarded the magistrate judge's credibility findings without holding a new hearing.  

The Court reversed the district court's order granting suppression and remanded the case to give the district court an opportunity to decide whether to conduct a de novo evidentiary hearing or to accept the fact findings of the magistrate judge.  The Court noted that, if accepted, those finding compel the end finding that it is more likely than not that the challenged evidence ultimately would have been discovered, without the constitutional violation, through lawful means.          

Braddy: Upholding Denial of Suppression Motion Based on an Alabama Traffic Stop and Dog Sniff

In United States v. Braddy, No. 19-12823 (Aug. 31, 2021) (Rosenbaum, Lagoa, Ed Carnes), the Court affirmed the denial a motion to suppress.

First, the Court held that the officer had reasonable suspicion make the traffic stop after observing bicycles obstructing the car’s Florida license plate.  The defendant argued that Alabama traffic law did not apply to him as a non-resident Florida driver.  The Court held that, regardless of whether the defendant’s interpretation of Alabama law was correct, the officer’s interpretation by the officer was objectively reasonable.

Second, the Court held that the officer did not unlawfully prolong the traffic stop.  The officer’s questions about the driver’s travels plans and itinerary, as well as the address on his license and ownership of the vehicle, were ordinary inquiries related to the purpose of the stop.  A dog sniff of the car also did not unlawfully prolong the stop because the sniff was conducted while the officer was still waiting for a warrant check to come back before issuing a warning.

Third, the drug-sniffing dogs were sufficiently reliable to provide probable cause to search the car.  The district court did not clearly err by crediting the officers’ testimony about the dogs’ training and certification over the defense expert’s contrary testimony.  The officers testified that the dogs’ positive alert, although “very quick” and not “final,” was consistent with their training, and the district court credited that testimony.

Judge Rosenbaum concurred in part and dissented in part.  In her view, the officers’ observations were too subjective and were closer to a hunch, since the dog behavior was so quick and subtle (and not confirmed by her review of the video) that it could have easily been normal dog behavior.  She would not defer to the officers’ subjective interpretations of dog behavior, which would effectively insulate their conduct from Fourth Amendment scrutiny.

Korf: Upholding Denial of Injunction Prohibiting Use of Taint Team and Filter Protocol

In In re: Sealed Searched Warrant and Application for a Warrant by Telephone or Other Reliable Electronic Means (United States v. Korf et al.), No. 20-14223 (Aug. 30, 2021) (Martin, Rosenbaum, Luck) (per curiam), the Court upheld the denial of a motion to enjoin the use of a government filter team.

The government executed a search warrant at a suite of offices, and included in the materials seized were those from the office of an in-house attorney.  Relying on Rule 41(g), the clients intervened and sought an injunction prohibiting the government’s filter team—consisting of government attorneys and staff who were not involved in the investigation—from reviewing any potentially privileged documents without their consent or court approval.  On appeal, the Court first concluded that it had appellate jurisdiction because the intervenors sought only the return of their property, not invalidation of the seizure, and that was sufficiently independent of any forthcoming criminal judgment.  However, the Court found no abuse of discretion in denying the request for injunctive relief because the intervenors could not show a substantial likelihood that they would succeed on their claim that a government filter team per se violates their rights, or that the filter protocol in place here would violate their rights.  The filter protocol here allowed the intervenors to conduct an initial privilege review, and it required their permission or a court order before releasing any purportedly privileged documents to the investigation team.

Mitchell: It is Unconstitutional for Prison Officials to Open Legal Mail Outside Inmate's Presence

 In Mitchell v. Duvall County et al., No. 19-14505 (Aug. 26, 2021) (Branch, Grant, Tjoflat), the Court re-affirmed that it clearly violates the First Amendment for prison officials to open an inmate’s legal mail outside of his presence. 

Watkins: En Banc Court Holds Preponderance of Evidence, Not Reasonable Probability, Governs Inevitable Discovery Exception to Exclusionary Rule

In United States v. Watkins, No. 18-14336 (Aug. 20, 2021), the en banc Court—in a joint opinion by Judges Martin and Ed Carnes—granted the defendant’s rehearing petition and vacated the panel opinion without oral argument. 

The en banc Court held that the standard of proof that the government must meet in order to establish that evidence would have been inevitably discovered is the preponderance of evidence, not a “reasonable probability.”  All prior Eleventh Circuit precedents to the contrary are overruled.  The Eleventh Circuit remanded the case back to the panel for further proceedings consistent with this new holding.

Gonzalez: SR Sentences May be Reduced Under Section 404 of First Step Act

In United States v. Gonzalez, No. 19-14381 (Aug. 19, 2021) (Jordan, Newsom, Tjoflat), the Court affirmed the denial of a motion for a reduced sentence under Section 404 of the First Step Act.

Joining two other circuits, and accepting the government’s concession, the Court held that a sentence imposed upon revocation of supervised release can be reduced where the underlying offense is a “covered offense.”  However, the Court affirmed the denial of the motion because the district court’s alternative discretionary denial was supported by the record and 3553(a) factors.  The Court declined to follow a Seventh Circuit decision (and arguably Fourth and Sixth Circuit decisions) categorically requiring the district court to calculate and consider the defendant’s new guideline range before exercising discretion under Section 404(b).

Judge Tjoflat concurred because he was bound by precedent, but he believed that, because the text of Section 404 includes no standard guiding the district court’s discretion, the court of appeals cannot review discretionary denials at all.

Coats: Aiding/Abetting Georgia Burglary Is Generic Burglary Under the ACCA

In United States v. Coats, No. 18-13113 (Aug. 12, 2021) (Martin, Newsom, Julie Carnes), the Court, in a 75-page opinion, affirmed the defendant’s felon in possession conviction and affirmed his ACCA sentence.

As to the conviction, the Court found no plain error under Rehaif.  Although the district court committed error that was plain by accepting his guilty plea without advising him of the mens rea element, he could not establish prejudice, as required by the Supreme Court’s recent decision in Gary, because he made no attempt to show that he would have proceeded to trial but for the Rehaif error, and he had numerous prior felony convictions.

As to the sentence, the Court held that the defendant’s 2003 Georgia burglary conviction qualified under the ACCA’s enumerated clause.  In an extensive discussion, the Court rejected the defendant’s argument that Georgia’s “party to a crime” statute, which included aiding and abetting liability, rendered his offender non-generic.  Georgia law required an accomplice to burglary to take affirmative action and to intend to facilitate the crime, as required by the generic standard for aiding and abetting articulated by the Supreme Court in Rosemond.

Finally, the district court did not err by declining to grant acceptance of responsibility because, despite pleading guilty, the defendant obstructed justice.  The record did not clearly establish that this was an extraordinary case where a reduction was warranted notwithstanding the obstruction, especially given that the obstructive act was a violent assault of a key witness.  It was not enough that the obstruction preceded the indictment.

Akwuba: With One Exception, Upholding Pill Mill Convictions Over Various Trial Challenges

In United States v. Akwuba, No. 19-12230 (Aug. 11, 2021) (Wilson, Rosenbaum, Ed Carnes), the Court affirmed, with one exception, the defendant’s convictions for distributing controlled substances and health care fraud as part of a pill mill operation.

First, with one exception, the evidence was sufficient to support her convictions for distribution of controlled substances, conspiracy to distribute controlled substances and to commit health care fraud, and substantive health care fraud.  With regard to one count of substantive health care fraud, the government conceded, and the Court agreed, that the evidence was insufficient because an insurance company not named in the indictment was billed for the prescriptions for that count.

Second, the Court rejected the defendant’s argument that a jury instruction on a disputed factual question effectively directed a partial verdict of guilty.  The instruction did not relate to an element of the offense or any factual question that the jury was required to decide.  And although a closer question, the instruction also did not violate the right to present a defense because, while the judge erroneously told the jury that the parties had stipulated to something they did not, it did not prevent the defendant from presenting her theory of defense to the jury.

Finally, there was no reversible error on three evidentiary rulings.  First, the district court did not reversibly err by preventing the defendant from eliciting testimony that a prescription pad had been stolen, as defense counsel ultimately withdrew that line of questioning.  Second, the district court did not err by limiting a line of cross examination on the government’s expert witness because it did not pertain to the defendant, and there was nothing more to impeach the expert with.  Third, experts did not expressly state opinions regarding the defendant’s mental state, and the likely-irrelevant admission of some testimony about the experts’ personal practices did not rise to the level of plain error.

Harris: Upholding Drug/Firearm Convictions for Corrupt Cops In Face of Multiple Challenges

In United States v. Harris, No. 19-13692 (Aug. 9, 2021) (Jill Pryor, Newsom, Marcus), the Court affirmed the defendants’ drug and firearm convictions stemming from a reverse sting police corruption investigation.

First, there was sufficient evidence to support the defendants’ convictions based on the evidence at trial.

Second, while there was sufficient defense evidence of inducement to permit an entrapment defense to go to the jury, there was nonetheless sufficient evidence that the defendant was predisposed to take part in the conspiracy.  In addition, the defendant challenge the court’s response to the jury’s question about whether the definition of entrapment applied to each count or if it was a single determination.  The court responded that the jury should consider each crime and the evidence relating to each separately.  That was not an abuse of discretion because the evidence of predisposition was not the same for each count.

Third, the defendant was not entitled to a duress instruction because he did not show that he had no reasonable opportunity to escape or inform the police.

Fourth, the district court did not abuse by dismissing the indictment sua sponte based on prosecutorial misconduct because the prosecutor did not knowingly used perjured testimony or fail to correct material false testimony.  The Court found no misconduct at all.

Fifth, with regard to the defendants’ Batson challenge, they failed to make a prima facie case of discrimination.  The defendants argued only that the stricken jury was African American, and they did not believe there was any reason to disqualify him other than race.  Those arguments alone, however, were insufficient to raise an inference of racial discrimination.  The government only struck one African American out of the seven peremptory challenges, it made no objection to the other three African Americans on the panel, and the final jury included two African American jurors.  In any event, there was no error in the district court’s ultimate determination that the defendants failed to establish that the government’s race-neutral reason was pretextual.

Sixth, the prosecutor did not improperly shift the burden of proof or commit misconduct at closing.

Finally, the district court did not commit plain error by failing to sua sponte advise the jury that a read-back of trial testimony was available because there was no precedential decision so holding.  Nor did the defendant show any prejudice from the failure.

Cordero: Upholding Various Challenges to Supervised Release Term and Conditions

In United States v. Cordero, No. 18-10837 (Aug. 4, 2021) (Branch, Grant, Tjoflat), the Court affirmed the defendant’s motion to modify and terminate his supervised release.

First, the district court did not abuse its discretion by entering a sealed order requiring the defendant to disclose information related to the work he performed and by requiring him to disclose his sex offender status to potential clients.  The Court rejected his argument that the order effectively modified his supervision and imposed a new restriction without granting him an evidentiary hearing or making necessary findings.  The district court was merely enforcing a previously-imposed condition of his supervision.  To the extent the defendant sought to challenge the original condition, he failed to appeal it after it was imposed, and any such challenge was barred by a valid appeal waiver.

Second, the district court did not abuse its discretion by denying the motion to modify the conditions of supervised release to eliminate a restriction on internet access.  Although the district court did not explicitly address the 3553(a) factors, the record as a whole supported the conclusion that the district court considered them.  And those factors supported the continued existence of the restriction.  In addition, while the defendant argued that the internet restriction was now unconstitutional in light of the Supreme Court’s decision in Packingham, the Court joined three other circuits in concluding that a defendant cannot challenge the legality or constitutionality of his supervised release conditions through a motion for modification under 3582(e)(2); that argument must instead be raised on direct appeal or in a 2255 motion.  In any event, the Court noted that its recent decision in Bobal foreclosed the defendant’s constitutional challenge.

Finally, the district court did not abuse its discretion in denying the motion for early termination because the record as a whole supported the conclusion that the district court considered the 3553(a) factors.

Carter: One version of Georgia aggravated assault is not an ACCA violent felony post-Borden

In United States v. Carter, No. 17-15495 (Aug. 3, 2021) (Black, Marcus, Restani), the Court vacated the defendant’s ACCA sentence based on a prior conviction for Georgia aggravated assault with a deadly weapon.

Based on the Shepard documents, the Court was required to assume that the defendant was convicted of a version of Georgia aggravated assault that could be committed with a mens rea of recklessness—specifically, committing an act which places another in reasonable apprehension of immediately receiving a violent injury.  Because that offense could be committed recklessly, the Court had previously held in Moss that it was not a violent felony.  And the Court had reaffirmed Moss after the Supreme Court’s decision in Borden confirmed that reckless crimes do not satisfy the ACCA’s elements clause.

Williams: Affirming Convictions for Sex Trafficking and Sentence of Life Imprisonment

In United States v. Williams, No. 19-11972 (July 23, 2021) (Martin, Grant, Brasher), the Court affirmed the defendant's convictions for sex trafficking and sentence of life imprisonment.

Defendant raised three challenges to his convictions: (1) the district court improperly admitted nude images and videos of the victims; (2) there was not enough evidence to show that he had the required mens rea for his crimes against one of the victims; and (3) the district court should have instructed the jury that a victim's consent to perform a sex act is a defense to sex trafficking. 

As to the first argument, the Court only considered whether the images' probative value was substantially outweighed by the danger of unfair prejudice because the defendant conceded that the images were relevant.  The Court found the images and videos were probative and not unduly prejudicial.  Though they were graphic in nature, that was unsurprising given the nature of the alleged crimes.  Additionally, the district court properly cautioned potential jurors during voir dire that they would view evidence of a sexually explicit nature, and seated those jurors who confirmed that this would not impact their ability to be fair and impartial.  

Next, the Court found that the government presented sufficient evidence demonstrating that the defendant knew that one of the victims was a minor at the time he trafficked her.  Similarly, the government introduced sufficient evidence demonstrating that the defendant continued to coerce her to engage in a commercial sex act as an adult.  

Finally, the Court found no abuse of discretion in the district court's denial of defendant's proposed jury instruction because the 11th Circuit has never recognized consent as a valid defense to sex trafficking.  And, in any case, the court's instructions substantially covered the issue.  

The Court also affirmed defendant's sentence of 5 terms of life imprisonment and 240 months imprisonment (all to run concurrent), along with restitution.  As to the restitution amounts, the Court found them properly calculated even though they were government estimates because they were reasonable--supported by credible evidence, including trial testimony.  The Court also held that under the Trafficking Victims Protection Act, a victim is entitled to the "gross income" derived from her trafficking, so no offset for living expenses paid by the defendant was necessary.  Finally, even though one of the victims renounced any restitution award, restitution under the TVPA is mandatory, and therefore, the court must order it.  The Court acknowledged that this holding was contrary to the holding of the Tenth Circuit analyzing similar language in the MVRA.  

The Court also found defendant's life sentences substantively reasonable.        

Dudley: Sentencing Court May Consider Factual Basis for Plea When Conducting ACCA Different-Occasions Inquiry

In United States v. Dudley, No. 19-10267 (July 22, 2021) (Newsom, Branch, Ray (N.D. Ga.)), the Court affirmed the defendant's ACCA-enhanced sentence.  Judge Branch delivered the opinion of the Court, in which Judge Ray joined, and Judge Newsom joined in all but Part III.A.    

On appeal, defendant argued that he was not ACCA because there was insufficient evidence to establish that his prior Alabama felony convictions were for offenses committed on occasions different from one another.  He also argued, for the first time on appeal, that Rehaif necessitated vacatur of his guilty plea to being a felon in possession of a firearm. 

The Court noted that the different-occasions inquiry necessarily requires looking at the facts underlying the prior convictions, but that courts are limited to Shepard-approved sources, as only information found in such conclusive judicial records has gone through a validation process that comports with the Sixth Amendment.  The Court also noted that in determining whether a defendant's prior convictions were committed on different occasions from one another, a district court may rely on non-elemental facts contained in the Shepard-approved sources.  Finally, the Court rejected the argument that judicially determining whether prior convictions were committed on different occasions from one another for purposes of the ACCA violates a defendant's Fifth and Sixth Amendment rights, finding itself bound by its opinion in Almendarez-Torres.     

With the above in mind, the Court found the district court's reliance on dates proffered by the state prosecutor during the plea colloquy for the Alabama offenses proper because, although the defendant did not state expressly during the Alabama plea colloquy that he agreed with the prosecutor's factual proffer, he did not object.  The Court held that, consistent with Shepard, where there is evidence of confirmation of the factual basis for the plea by the defendant--be it express or implicit confirmation--a federal sentencing court is permitted to rely on those facts to conduct the different-occasions inquiry.    

The Court also rejected the defendant's challenge to his guilty plea as foreclosed by binding precedent.  

Judge Newsom concurred in part and dissented in part.  He dissented from Part III.A. of the Court's opinion, rejecting the defendant's challenge to the ACCA enhancement, because, in his view, a federal court may consider a plea-colloquy transcript in determining whether a defendant's prior offenses were committed on different occasions only when the factual basis for the plea was expressly confirmed by the defendant. 

 

Moss: Reinstating Panel Opinion

In United States v. Moss, 17-10473 (July 22, 2021) (en banc), the Court vacated its order granting rehearing en banc, and reinstated the panel's opinion in light of the Supreme Court's opinion in Borden v. United States, 141 S. Ct. 1817 (2021).

The reinstated panel opinion held that Georgia aggravated assault did not satisfy the elements clause of the ACCA because it could be committed recklessly.    

Carrasquillo: Finding "Daylight" Between U.S.S.G. § 2D1.1(b)(1) and § 5C1.2(a)(2)

In United States v. Carrasquillo, 19-14143 (July 14, 2021) (Jordan, Newsom, Tjoflat), the Court affirmed defendant's 60-month sentence for conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. 

Defendant first argued that the district court erred by failing to elicit objections after imposing his sentence, thereby committing Jones error.  The Court agreed that the district court erred, but concluded that remand was unnecessary because the record was sufficient to permit appellate review of the sentencing issue raised.  

Defendant next argued that the district court improperly conflated the standards under U.S.S.G. § 2D1.1(b)(1)--which provides for a two-level increase if a dangerous weapon, including a firearm, "was possessed"--and U.S.S.G. § 5C1.2(a)(2)--the "safety-valve" provision that permits a district court to impose a sentence without regard to an otherwise-applicable mandatory minimum if certain criteria are satisfied, including if the defendant did not "possess a firearm  . . . in connection with the offense"-- when it denied him safety-valve relief after finding that he was subject to a two-level enhancement for possessing a firearm.

The Court agreed that there is "daylight" between the standards under § 2D1.1(b)(1) and § 5C1.2(a)(2).  While a defendant must show that it is "clearly improbable" the gun was connected to the offense to prevent application of § 2D1.1(b)(1), he need only "tip the scale towards improbability--a lighter burden" to qualify for safety valve relief.  The Court also agreed that application of the firearm enhancement does not necessarily preclude safety-valve relief.  But, the Court nonetheless affirmed because, on the record, the district court's factual findings under § 2D1.1(b)(1) foreclosed relief under § 5C1.2(a)(2).  There is overlap between § 2D1.1(b) and § 5C1.2(a)(2), and that overlap results from the common issue of connectivity.  A § 2D1.1(b)(1) factual finding that there is a connection between the firearm and the offense, if supported by the record, means that the defendant cannot satisfy § 5C1.2(a)(2).        

Colston: Affirming Convictions for Possession with Intent to Distribute and Conspiring to Distribute

In United States v. Colston, No. 19-13518 (July 13, 2021) (Grant, Tjoflat, Ed Carnes), the Court affirmed defendant's convictions for knowingly possessing with intent to distribute 2 kg of cocaine, in violation of 21 U.S.C. § 841(a)(1), and conspiring to distribute cocaine, in violation of 21 U.S.C. § 846.  

Defendant walked into a post office, showed a tracking receipt on her phone, and walked out with a package containing roughly $200,000 worth of cocaine.  Unbeknownst to her, however, law enforcement had already flagged the package, and arrested her as soon as she picked it up.  

On appeal, defendant first argued that the evidence was insufficient to support her convictions because the government failed to prove that she specifically knew the package contained cocaine.  Though the government agreed that proof of knowledge of the specific drug was an element of the offense, the Court disagreed, and held that the government need only prove that a defendant knew she possessed a controlled substance, not knowledge of the specific substance she possessed.  The Court clarified that when the government charges violations of § 841(a)(1) and also seeks enhanced penalties under § 846, it needs to prove a defendant's mens rea only for the substantive violation, not for the specific drug charged.  In so holding, the Court clarified that its prior precedent indicating otherwise--United States v. Narog, 372 F.3d 1243 (11th Cir. 2004)--was no longer good law.   

Defendant next argued that the district court erred in giving a deliberate ignorance instruction because there was insufficient evidence to support it.  The Court held that where the evidence introduced at trial is sufficient to support another theory--here, actual knowledge--it need not decide whether the evidence was also sufficient to justify giving a deliberate ignorance instruction.  

Finally, defendant challenged the admission into evidence of her illegal sales of prescription drugs.  The Court found evidence of prior drug dealings to be probative of intent to distribute a controlled substance, as well as involvement in a conspiracy.  And, any probative value was not substantially outweighed by undue prejudice.  

Stancil: Affirming ACCA-Enhanced Sentence Based Upon Virginia Drug Priors

In United States v. Stancil, 19-12001 (July 13, 2021) (Branch, Grant, Tjoflat), the Court affirmed the defendant's ACCA-enhanced conviction and sentence for being a felon in possession of a firearm.  

Defendant was pulled over for speeding one night.  When officers approached his car, they saw him reach down several times.  They also smelled marijuana when defendant lowered his window.  They asked the defendant to step out of his vehicle and ran his driver's license, which revealed that he was a convicted felon on probation.  While one officer checked defendant's license, another searched his car and found a firearm under the driver's side floor mat.  

Defendant moved to suppress the firearm, which the district court denied.  He then proceeded to a stipulated bench trial, and was found guilty.  At sentencing, the district court determined that his three prior Virginia drug convictions were serious drug offenses under the ACCA, and sentenced him to 15 years imprisonment.  

As to the prior Virginia drug convictions, defendant argued that the least culpable conduct included "giving or possessing with intent to give a controlled substance to another" without intent to profit, and therefore was overbroad.  The Court disagreed, analogizing to similar Alabama statutes analyzed in Hollis v. United States and United States v. Robinson.   

As to defendant's motion to suppress the firearm, the Court found no clear error in the district court's decision to credit the testimonies of the police officers who testified, and found that the officers had probable cause to search defendant's car on account of the marijuana odor.  

The Court also rejected--as clearly foreclosed by binding circuit precedent--defendant's arguments that his Fifth and Sixth Amendment rights were violated when the court determined that his prior predicate offenses occurred on different occasions, and his argument that 18 U.S.C. § 922(g)(1) exceeds Congress's authority under the Commerce Clause.   

Phillips: Vacating Conviction on Double Jeopardy Grounds

In United States v. Phillips, No. 18-11737 (July 13, 2021) (Jill Pryor, Grant, Royal (MD Ga)), the Court affirmed in part and vacated in part defendant's convictions relating to child pornography.

Defendant was charged with, and convicted of: (1) knowingly and intentionally using, persuading, inducing, and enticing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, in violation of 18 U.S.C. §§ 2251(a) and (e); (2) knowingly receiving, and attempting to receive, material containing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1); and (3) knowingly possessing, and attempting to possess, material containing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2).   

On appeal, defendant first challenged the jury instruction given as to count 1.  He argued that the district court constructively amended the indictment because the indictment charged him with "knowingly and intentionally" causing a minor to engage in sexually explicit conduct, while the court's instruction to the jury noted that the government need not prove that the defendant knew the victim was a minor.  The Court found no reversible error because the statute does not require that the defendant know his victim's age; therefore, the district court did not err in disregarding any language in the indictment that suggested otherwise.  

Defendant next argued that he was improperly convicted and sentenced for both a crime and a lesser-included crime based on the same set of facts--receiving and possessing child pornography.  The Court agreed that it was a violation of the Double Jeopardy Clause for defendant to be convicted of both an offense and its lesser-included offense, and vacated defendant's conviction for count 3.  The Court did so on plain error review.         

Leonard: § 922(g) Indictment Errors Subject to Harmless Error Review

In United States v. Leonard, No. 19-14142 (July 8, 2021) (Martin, Grant, Brasher), the Court held that an indictment's failure to set out an element of the offense does not warrant an automatic presumption of prejudice to the defendant.  Any such error is subject to the harmless-error inquiry.  

Defendant was indicted for being a felon in possession of a firearm prior to the Supreme Court's issuance of Rehaif v. United States, 139 S. Ct. 2191 (2019).  Once the Supreme Court granted certiorari review in Rehaif, the government, in an abundance of caution, superseded defendant's indictment to include the knowledge element.  The defendant moved to dismiss the new indictment as legally insufficient, which the district court denied. On appeal, defendant challenged his indictment, the district court's refusal to reopen his suppression hearing, the district court's denial of his motion to hold a hearing to challenge the search warrant affidavit, whether cumulative trial errors warranted reversal, and the propriety of his sentence. 

With regard to the indictment, the Court held that an indictment that references only § 922(g) and not also § 924(a)(2) is sufficient to confer subject matter jurisdiction.  Additionally, the indictment was itself legally sufficient and gave defendant adequate notice of the elements the government needed to prove.  But, even if the indictment could have been better drafted, any error in its wording was harmless, applying the Supreme Court's recent opinion in Greer. 

With regard to the district court's refusal to reopen the suppression hearing, the Court found no abuse of discretion because the "new evidence" defendant referenced did not contradict the testimony the district court already considered at the hearing.  

With regard to challenges to the veracity of search warrant affidavit, the Court held that defendant failed to make a "substantial preliminary showing" that the search warrant author made false statements intentionally or with a reckless disregard for the truth, and that the false statement was necessary to the finding of probable cause.  

With regard to the alleged cumulative trial errors, the Court held such relief unwarranted where, as here, there is only one error or no errors at all. 

Finally, the Court affirmed defendant's ACCA-enhanced sentence.   

Matthews: Affirming Application of Sentencing Enhancement for Offense Involving Semiautomatic Firearm Capable of Accepting Large Capacity Magazine

In United States v. Matthews, No. 20-10554 (July 6, 2021) (Wilson, Rosenbaum, Ed Carnes), the Court affirmed the defendant's 57-month sentence for making false statements to a firearms dealer. 

Defendant objected to the application of enhancements for (1) an offense involving a semiautomatic firearm that is capable of accepting a large capacity magazine, and (2) having a prior conviction for a crime of violence.

The Court first acknowledged that neither it nor its sister circuits had published an opinion addressing how the sentencing enhancement under § 2K2.1(a)(3) applies when the underlying offense is making a false statement to a firearms dealer. At issue here is the commentary's definition of semiautomatic firearm that is capable of accepting a large capacity magazine as "a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm.  Here, the district court reasonably inferred that a magazine capable of accepting more than 15 rounds of ammunition--that comes standard with the rifle defendant tried to purchase--was in close proximity to the rifle defendant tried to purchase.  As such, the district court did not err in applying the enhancement. 

The Court also reaffirmed that a conviction for felony battery under Fla. Stat. § 784.041 is categorically a crime of violence.  Therefore, the district court did not err in determining that defendant's prior conviction for Florida felony battery constitutes a crime of violence.        

Pitts: Affirming § 2255 Denial for Failure to Satisfy Beeman Burden

In Pitts v. United States, No. 18-12096 (July 6, 2021) (Luck, Ed Carnes, Marcus), the Court affirmed the denial of Pitts's  Johnson-based second or successive § 2255 motion.  

Pitts was sentenced as an armed career criminal based upon the following prior convictions: (1) a 1978 California conviction for robbery with a firearm; (2) a 1982 California conviction for robbery and forcible rape; (3) a 1993 Florida conviction for delivery of cocaine; and (4) a 2001 Florida conviction for possession with intent to sell or deliver cocaine.  

On appeal, the Court addressed whether Pitts carried his burden of showing that the district court that sentenced him erred under the Johnson decision in counting his two robbery convictions as ACCA predicate violent felonies.  It found that he had not under Beeman.  A movant can meet his Beeman burden in one of two ways: first, by pointing to evidence in the record showing that the district court relied only on the residual clause in sentencing him--evidence which may include comments made by the parties, by the sentencing judge, or in the PSR; second, by showing that when he was sentenced, binding precedent clearly established that the predicate offense was a violent felony only under the ACCA's residual clause. 

Here, Pitts failed to identify anything in the sentencing transcript, PSR, or the remainder of the record indicating that the court relied on the residual clause, instead of the elements clause, in concluding that this 1978 California robbery conviction was a violent felony.  Additionally, the Court found Pitts's reference to multiple California cases unconvincing.  Pitts's reliance on United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015), is unavailing because it was decided six years after he was sentenced.  Pitts's reliance on United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), was also unavailing, even though it was issued before Pitts was sentenced, because it does not establish that robbery under California law is not a violent felony for purposes of the ACCA.  There, the 9th Circuit held that a conviction under California's robbery statute would necessarily constitute either generic robbery or generic extortion.  Thus, even if the district court might have concluded that the 1978 robbery was a violent felony under the residual clause, it could have been persuaded to find that the robbery was tantamount to extortion and therefore qualified under the enumerated offenses clause of 18 U.S.C. § 924(e)(2)(B).  

At best then, it is unclear from the record whether the sentencing court relied on the residual clause or the elements clause or the enumerated offenses cause, or all three.  As such, Pitts has failed to meet his burden and loses.         

In re Grand Jury Subpoena: Upholding Order Compelling Attorney Grand Jury Testimony Based on Crime-Fraud Exception to Attorney-Client Privilege

In In re Grand Jury Subpoena, No. 21-11596 (June 25, 2021) (Jordan, Newsom, Lagoa), the Court upheld an order granting the government’s motion to compel an attorney’s testimony to a grand jury.

The attorney was the lawyer in charge of the campaign of a political candidate who was under criminal investigation.  While the attorney claimed that his testimony was protected by the attorney-client privilege, the Court agreed with the district court that the communications fell into the crime-fraud exception to the privilege.  First, the Court held that the government made a prima facie showing of federal wire fraud by the candidate stemming from the diversion of, and failure to report, funds solicited by and donated to the campaign.  Second, the Court held that the attorney’s communications with the campaign were sufficiently related to the wire-fraud scheme.  Although courts have articulated different standards of relatedness, the more restrictive standard—requiring the communications to have furthered the criminal purpose—was met here because the lawyer was aware of the personal expenditures and then revised and reviewed the misleading disclosure forms.

Henry: Adjustment for Undischarged State Sentence Under USSG 5B1.3(b) is Advisory, Not Mandatory

In United States v. Henry, No. 18-15251 (June 21, 2021) (William Pryor, Grant, Antoon (MD Fla)), the Court vacated the panel opinion upon a petition for rehearing by the government and affirmed the defendant’s sentence.

Contrary to the panel’s original opinion, the panel now held that USSG 5G1.3 is advisory, not mandatory.  After Booker, all Guidelines are advisory.  There is no distinction between Guidelines that affect the sentencing “range” and those that affect the “kind of sentence” available.  While the district court needed to consider 5G1.3(b) when determining the sentence recommended by the Guidelines, it was then free to exercise its discretion to impose the sentence it deemed appropriate under 3553(a).  And, in any event, because the district court considered 5G1.3 and said it would impose the same sentence regardless, any error was harmless.

Chief Judge Pryor, author of the original panel opinion, dissented.  Elaborating on his original opinion, he maintained that, under circuit precedent, 5B1.3(b) is mandatory, and that precedent was correct because it involves the imposition of the sentence, not the calculation of the guideline range.  He also disagreed that any error here was harmless because 5G1.3(b) involves a back-end adjustment to the sentence.

Nunez: Affirming Title 46 Convictions Over Various Challenges and Clarifying that Identity of Controlled Substance is Not an Element

In United States v. Nunez et al., No. 19-14181 (June 17, 2021) (William Pryor, Grant, Tjoflat), the Court affirmed the defendants’ MDLEA convictions.

First, the Court held that there was jurisdiction because the vessel was one without nationality.  The “vessel without nationality” definitions in the statute were not exclusive, and the vessel here lacked nationality because it carried no documents, flew no flag, had no name or numbers, and nobody on the vessel claimed that it had nationality or registry.  In addition, nobody claimed to be the master or captain, and the smugglers all played equal roles.  The Court rejected the argument that this meant they were all in charge or took turns at being in charge.  The Court also rejected a Second Circuit decision, which concluded that jurisdiction was lacking when three men, none of whom claimed to be the master, were not asked for a claim of nationality or registry.

Second, the Court held that the district court was not required to hold an evidentiary hearing on jurisdiction under either the Confrontation Clause or the statute.  In this case, the smugglers did not identify any facts that they sought to contest or additional facts they sought to introduce.  Nor did the they suffer any prejudice by the district court waiting until the end of the trial to make a final determination about jurisdiction.

Third, sufficient evidence supported the convictions.  The Court clarified that its decision in Narog, which required the government to prove knowledge of the particular controlled substance alleged in the indictment, was contrary to earlier precedents and therefore is not good law.  The identity of the controlled substance is not an element of the offense.

Finally, the Court rejected the argument that the district court deprived the defendants of their right to a complete defense when it prohibited them from cross-examining the government’s witnesses about more than the basic details of their 10-day outdoor confinement on the vessel.  That evidence was cumulative to evidence already admitted, and any error was harmless.

Anderson: Upholding Shrimping Fraud Convictions Against Multiple Challenges

In United States v. Anderson, No. 18-13947 (June 15, 2021) (Wilson, Branch, Julie Carnes), the Court affirmed the defendant’s mail fraud, false statements, and money laundering convictions.

First, the Court held that the district court did not err by asking the defendant whether he knew that he had a right to testify and whether he wished to do so or waive the right.  Although not required, the court’s straightforward and neutral inquiry did not violate his right to testify.  Nor did it render his counsel ineffective by asking what choice the defendant had made.  The colloquy, which did not probe questions of strategy or suggest the court’s own preference, vindicated rather than violated his constitutional rights.

Second, the district court did not abuse its discretion by failing to give a requested instruction on a particular statute that he was not charged with violating.  Failure to give the instruction did not impair the defense, and the defendant was otherwise free to pursue his defenses without impediment.

Third, the Court found no reversible error under Rule 30(b) where the district court amended an erroneous draft jury instruction for mail fraud after the defendant’s closing argument.  The Court found no unfair prejudice, as the instructional issue had nothing to do with the theory of defense or any critical strategic decisions relating to closing argument.  Nor was reversal required by the court’s failure to give a curative instruction to a brief comment by the prosecutor suggesting that defense counsel had been misleading in closing.

Finally, the district court did not plainly err by giving a modified Allen charge similar to the pattern instruction.  The instruction was not impermissibly coercive because the deviation from the pattern, which had been upheld previously, consisted of only minor word changes.

Montenegro: Upholding Enhancement Under 2D1.1(b)(1) for Possession of Firearm

In United States v. Montenegro, No. 19-13542 (June 11, 2021) (Branch, Grant, Tjoflat), the Court upheld an enhancement under USSG 2D1.1(b)(1) for possessing a firearm.

The Court held that the government met its burden by showing that the gun was present at the site of the drug possession charge.  The burden therefore shifted to the defendant to prove that the connection between the gun and drugs was clearly improbable, and the defendant could not meet his heavy burden to do so.  Although he did not have the gun with him during drug transactions, the gun was present in the home with the drugs that he was convicted of possessing with intent to distribute.  Although the government agreed at sentencing that the enhancement did not apply, it was up to the district court to calculate the guidelines, and nothing prohibited the government from reversing position on appeal.

In footnote 3, the Court held that the defendant failed to preserve his objection to the district court’s failure to grant him a two-level safety-valve reduction.  By raising that issue in one sentence in his initial brief, and by failing to devote a discrete section of his argument to it, he failed to sufficiently raise the error on appeal.  And while the defendant did make substantive arguments about it in his reply brief, the Court does not consider arguments raised for the first time in reply.

Cody: No COA Required for Choice of Sentencing Remedy Following Successful 2255 Motion

In United States v. Cody, No. 19-11915 (May 28, 2021) (William Pryor, Luck, and Marks (MD AL)), the Court held that a certificate of appelability is required when appealing from a district court’s decision to simply remove a now-illegal ACCA enhancement without re-sentencing the defendant on other counts.  The Court explained that such a decision about the choice of remedy was part of the 2255 proceeding, not the criminal proceeding.  And because the defendant lacked a COA, the Eleventh Circuit lacked jurisdiction.  In so holding, it appeared to acknowledge that the Fourth Circuit has reached a contrary holding.

Roberson: Upholding Section 666 Bribery Convictions

In United States v. Roberson, No. 18-14654 (Wilson, Branch, Restani (Int’l Trade)), the Court affirmed the defendants’ convictions for bribing an Alabama state representative.

The Court first held that the evidence was sufficient to support the defendant’s bribery convictions under 18 U.S.C. 666.  The Court rejected the defendants’ argument that the “official acts” requirement recognized in McDonnell for the bribery statute in 18 U.S.C. 201 also applied to Section 666.  The Court rejected the defendants’ argument that the official was not “agent of Alabama” but rather an agent of the Alabama legislature.  And it rejected their argument that the “retainer” theory of liability was invalid and implicated their First Amendment rights.

The Court next found no reversible error with regard to the jury instructions, rejecting similar arguments made in the sufficiency context.

Finally, the Court found no abuse of discretion in refusing to sever the defendants for trial.  The defendant argued that joinder with his attorney resulted in the exclusion of certain evidence that prevented him from making an advice-of-counsel defense.  The Court rejected that argument because the evidence was essentially cumulative and had relatively little probative value.

Cook: Vacating Denial of Compassionate Release Motion for Failure to Consider 3553(a) Factors

In United States v. Cook, No. 20-13292 (May 27, 2021) (Jordan, Marcus, Ginsburg (CADC)), the Court vacated the denial of a motion for compassionate release and remanded for further proceedings.

The Court held that, as in the 3583(e) and 3582(c)(2) contexts, the district court must consider the 3553(a) factors under 3582(c)(1)(A)(i).  The Court vacated the denial because the district court’s order and record failed to demonstrate that the court considered the 3553(a) factors.  The motion was based primarily on the pandemic, but the court’s order failed to mention it.  The court’s boilerplate prefatory language, and the fact that the judge originally presided over the criminal case, did not permit an assumption that the court considered the 3553(a) factors.  Because the record did not permit meaningful appellate review, the Court vacated and remanded.

Estepa: Upholding Wire Fraud Convictions Against Sufficiency Challenges

 In United States v. Estepa, No. 19-12272 (May 25, 2021) (Lagoa, Anderson, Marcus), the Court affirmed the defendants’ wire fraud convictions.

The Court rejected the defendants’ two arguments that the evidence was insufficient to support their convictions, which arose from misrepresentations made in bidding on local government construction contracts.  First, the Court found that the evidence was sufficient to show that the defendants engaged in a scheme to defraud by intentionally making material misrepresentations that it intended to comply with certain legal requirements and not to use subcontractors.  The Court rejected the defendants’ argument that there was no scheme to defraud because the government did not suffer a financial loss.  Second, the Court found that the evidence was sufficient to show that the defendants knowingly and voluntarily agreed to commit the scheme to defraud and pursued overt acts in furtherance of that agreement.  The Court rejected the defendants’ argument that their misstatements arose from a reasonable and good-faith interpretation of a complex regulatory regime.

Taylor: Upholding Electronic Search Condition of Supervised Release for Non-Sex Offender

In United States v. Taylor, No. 20-10742 (May 21, 2021) (Jill Pryor, Luck, Tjoflat) (per curiam), the Court upheld the defendant’s terms of supervised release and his sentence for his felon-in-possession offense.

The defendant argued that the district court erred by imposing an electronic search condition of supervised release to deter him from future offenses.  Although typically reserved for sex offenders, the Court held that such a search condition may also be imposed on other offenders, such as those who frequently recidivate or violate their supervised release in a way that poses a danger to others.  In this case, there was no abuse of discretion because, although the defendant was not a sex offender and the condition did not directly relate to his firearm offense, it was reasonably related to his history as a recidivist.  The condition was not overbroad because it allowed access only at a reasonable time when there was reasonable suspicion.  And the specific areas to be searched were not vague because those areas were enumerated in the condition.

The Court also held that the 30-month sentence, a 3-month upward variance, was not substantively unreasonable.

Potts: No Abuse of Discretion in Declining to Reduce SR Term Under Section 404 of the First Step Act

In United States v. Potts, No. 19-12061 (May 19, 2021) (Lagoa, Hull, Marcus), the Court affirmed the denial of a motion for a sentence reduction under Section 404.

The Court held that the district court did not abuse its discretion in declining to reduce one of the defendant’s terms of supervised release.  The district court referred to the 3553(a) factors, the facts and circumstances of the case, the government’s response, probation’s memorandum, and the defendant had an extensive criminal history.  The Court rejected the defendant’s argument that the record did not permit meaningful appellate, distinguishing its recent decisions in Stevens and Russell.

Castaneda: Upholding Enticement Convictions and 35-year Sentence

In United States v. Castaneda, No. 19-12623 (May 19, 2021) (William Pryor, Luck, Ed Carnes), the Court affirmed the defendant’s enticement convictions and sentence.

First, the Court found no error in refusing to dismiss the indictment based on outrageous government misconduct by exposing him to child pornography during its sting operation.  The Court emphasized he (not the government) exposed himself to child pornography, and no court has ever found such government misconduct to rise to the level of dismissal.  “The hunt for Sasquatch will have continue in another case.”

Second, the Court upheld the denial of a motion to suppress child pornography found on the defendant’s computers.  Two friends living in his apartment discovered the pornography and voluntarily turned the computers over to the FBI, which then obtained a search warrant.   Because those private actors acted independently of law enforcement, there was no Fourth Amendment violation, regardless of the defendant’s consent.

Third, the district court did not abuse its discretion in instructing the jury that the defendant did not have a Fifth Amendment privilege to refuse to answer questions on cross examination, and in instructing the jury that his refusal to answer questions could be used to assess his credibility.

Fourth, the Court found no abuse of discretion in excluding the defendant’s expert witness, Dr. Herriot, who would testify about generalized background information that people sometimes mix fact with fiction on the internet.  The Court had recently upheld the exclusion of that expert’s testimony in another case.

Finally, the Court found that the defendant’s 35-year guideline sentence, five years above the 30-year mandatory minimum and well below the maximum of life, was not substantively unreasonable.

Stevens: Courts Need Not Consider 3553(a) Factors in Section 404 Proceeding

In United States v. Stevens, No. 19-12858 (May 19, 2021) (Lagoa, Anderson, Marcus), the Court vacated the denial of a motion for a sentence reduction under Section 404 of the First Step Act.

The parties agreed, and the Court accepted, that the defendant had a “covered offense” under Section 404, and so was eligible for a reduction to his term of supervised release.  The Court then held that, although it may be best practice for district courts may consider the 3553(a) factors when exercising their discretion, Section 404 does not require that they do so.  The Court purported to follow four other circuits for that point, though it did not mention that other circuits had reached a contrary conclusion.  The Court ultimately vacated and remanded because the record did not permit meaningful appellate review of the district court’s alternative discretionary denial with respect to the term of supervised release.

Jackson: Upholding Enhancement Under 2K2.1(b)(6)(B) Where Sale of Drugs and Guns Were Negotiated as a Package Deal

In United States v. Jackson, No. 19-14883 (May 18, 2021) (William Pryor, Luck, Ed Carnes), the Court affirmed the defendant’s sentence.

The sentence was enhanced under USSG 2K2.1(b)(6)(B) for using or possessing a gun “in connection with” another felony, which occurs where the gun facilitated, or had the potential to facilitate, the other felony offense.  The district court did not clearly err by finding that connection here, where the defendant negotiated guns and drugs to be sold at the same time, even though the defendant ultimately sold the drugs first and the gun later.  Coordinating the sale of both at the same time shored up the drug sale and allowed the seller to conduct two sales with a minimal increase in the risk of detection.

Garcon: Disqualifying Safety-Valve Criteria in 3553(f)(1)(A)-(C) Are Disjunctive, Not Conjunctive

In United States v. Garcon, No. 19-14650 (May 18, 2021) (Jordan, Jill Pryor, Branch), the Court, after a government appeal, vacated the defendant’s sentence that had been imposed with the benefit of the safety valve in 3553(f).

The Court held that the criteria in 3553(f)(1)(A)-(C) are disjunctive, so that if any of those subsections apply, the defendant is not eligible for safety valve relief.  The Court rejected the defendant’s argument that a defendant is ineligible only if (A) through (C) all exist.  Because the defendant had a three-point offense under (B), he was ineligible for safety valve relief, even though he did not have more than 4 points under (A) or a 2-point violent offense under (C).

Judge Branch concurred, adding that the result was also supported by the rarely-used semantic canon referred to as the conjunctive negative proof.

 

Dominguez: 2G2.2(b)(5) Enhancement for Pattern of Sexual Abuse Does Not Require Physical Contact

In United States v. Dominguez, No. 19-11378 (May 13, 2021) (Jordan, Jill Pryor, Branch), the Court affirmed in part and reversed in part the defendant’s sentence.

To determine whether an enhancement was appropriate under USSGS 2G2.2(b)(5) for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor, the Court sided with the government over the defendant and the Fourth Circuit over the Seventh Circuit in holding that “sexual abuse or exploitation,” which effectively incorporates the phrase “sexual activity” in 18 USC 2422(b), did not require actual or attempted physical contact between two persons.  Rather, the phrase means action or pursuit relating to intercourse or to the desire for sex or carnal pleasure.  In this case, the defendant sent a minor a photo of his penis and asked her for naked pictures, and that constituted “sexual activity.”  However, the Court remanded for the district court to determine, in the first instance, whether the defendant’s conduct could have been charged as a criminal offense, a separate requirement for the enhancement.

Edward: Section 404 Is Self-Executing and Permits Courts to Add Supervised Release if They Reduce the Overall Sentence

In United States v. Edward, No. 19-13366 (May 13, 2021) (Jordan, Newsom, Tjoflat), the Court affirmed the ruling on the defendant’s motion for reduced sentence under Section 404 of the First Step Act.

First, the Court held that Section 404 is self-executing.  Therefore, a motion under that Section need not be brought under 3582(c)(1)(B), which is limited to reductions to the term of imprisonment (and not supervised release).  Second, and as a result, a district court has the authority under Section 404 to add a new term of supervised released, provided that it reduces the defendant’s overall sentence.  Here, the court appropriately exercised that authority by reducing a life sentence down to 260 months, and then adding an 8-year term of supervised release.