Eleventh Circuit Court of Appeals - Published Opinions

Thursday, April 15, 2021

Russell: Vacating and Remanding Denial of Motion for Sentence Reduction Under First Step Act Where District Court Construed Letter Requesting Counsel as Motion Seeking a Sentence Reduction

In United States v. Russell, No. 19-12717 (Apr. 15, 2021) (Jordan, Jill Pryor, Branch), the Court vacated the district court's denial of a motion for a sentence reduction under the First Step Act, and remanded for further proceedings.  

The defendant pleaded guilty to possessing with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A).  The factual basis of the plea, to which the defendant agreed, noted that law enforcement seized a total of 441.2 grams of crack cocaine from the defendant.  

After passage of the First Step Act, defendant sent the district court a one-page letter, asking the court to appoint counsel to assist him in filing a motion for a sentence reduction under the First Step Act.  The district court construed that letter as a motion requesting a sentence reduction under the First Step Act and directed the government to file a response.  The district court, in a two-paragraph order, then denied the defendant a sentence reduction. The court found him ineligible for relief because his offense involved 441.2 grams of crack cocaine. The district court also noted that even if the defendant were eligible for a sentence reduction, the court would not exercise its discretion to grant such a reduction. The defendant filed a pro se motion to reconsider, noting his eligibility for relief as well as his rehabilitation.  The district court denied that motion.  The Office of the Federal Public Defender then filed a motion for appointment of counsel to represent the defendant on appeal, which the court granted.  

The Court, on appeal, considered whether the district court abused its discretion when, after construing the defendant's letter requesting counsel as a motion for a sentence reduction, it refused to grant him a sentence reduction and then denied his motion for reconsideration. The Court answered in the affirmative.  The Court, applying Jones, held that a vacatur and remand was warranted because the defendant was eligible for a sentence reduction, and it was unclear whether the district court understood that it had the authority to reduce his sentence.  The Court found that it could not rely on the district court's statement that it would not exercise its discretion to reduce the defendant's sentence even if he was eligible for relief because the court did not provide enough of an explanation to permit meaningful appellate review.   

The Court also noted, in a footnote, its "serious concerns" about the district court's decision to recharacterize the defendant's letter as a motion for a sentence reduction.  But, the Court noted that it need not decide whether the district court's orders should be vacated because the district court purported to rule on a motion for a sentence reduction without giving him an opportunity to be heard, as the concurring judge proposed.  Instead, the Court maintained that a vacatur and remand were appropriate because the district court's orders were inadequate to allow for meaningful appellate review.  

Concurring in the judgment, Judge Branch noted that she would have vacated and remanded on different grounds.  She would not have reached the eligibility determination under Jones because she believes the district court erred as a matter of law in recharacterizing the defendant's letter without any notification or warning to the defendant.  Instead, she would have remanded for the district court to consider the defendant's letter requesting counsel.              

Thursday, April 08, 2021

Elysee: Affirming 922(g) Conviction and Sentence After Disallowing Testimony Regarding Another Person's Confession to the Charged Crime

In United States v. Elysee, No. 18-14214 (Apr. 8, 2021) (Newsom, Tjoflat, Ginsburg), the Court affirmed the defendant's conviction and sentence for being a felon in possession of a firearm. 

This case involved police pursuit of a Kia Optima, thought to contain a man in the passenger seat--dressed in yellow sneakers and a blue and yellow shirt and pant--who had been observed by officers jumping out of the car, pointing a gun at a Ford Mustang, and then speeding away.  Police pursued the Optima, and it eventually hit a light pole.  The passenger-side door opened and a man got out holding a black firearm, thought to be wearing a yellow and blue top and yellow shoes.  The man dropped the firearm and ran away.  He was eventually found curled up on the floorboard of another parked car.  He was arrested.  That man was the defendant.  Officers discovered a firearm near the right front tire of the Optima.  One week later, Darius Deen, the other occupant of the Optima, went to the police station and told Detective Raul Cabrera that he, and not the defendant, was the Optima's passenger and that the firearm found at the scene was his.  Defendant was charged with being a felon-in-possession, proceeded to trial, and was found guilty.          

On appeal, defendant raised four arguments: (1) the district court abused its discretion in precluding him from questioning Detective Cabrera about the substance of Deen's confession to show its effect on the listener; (2) the district court abused its discretion by admitting into evidence the document establishing defendant's prior conviction for armed robbery without redacting the document's references to "armed robbery" and "deadly weapon"; (3) the indictment was insufficient to charge a 18 U.S.C. § 922(g) offense after Rehaif, which was decided after the defendant's conviction; and (4) the district court erred in finding that a prior conviction for Florida armed robbery qualified as a "violent felony" under the ACCA. 

With regard to the first issue, defendant argued that the district court erred in invoking the hearsay rule to preclude him from questioning Detective Cabrera about the substance of Deen's confession to show its effect on the listener--the "effect" being that neither Cabrera nor any other office involved in the investigation did any additional digging to determine whether Deen's confession was truthful.  Defendant argued that this showed that the police failed to act as reasonably diligent officers under the circumstances because their minds were made up that the defendant was the culprit.  The Court, after a "painstaking examination of the trial transcript," including the transcript of a jail call wherein the defendant allegedly admitted to cooking up a scheme to have someone else confess to the crime, rejected defendant's arguments. While the Court agreed that Deen's statements would not have been hearsay if offered merely to demonstrate their "effect on the listener," his confession was still inadmissible because the "affirmative defense" it intended to prove--that Cabrera's conduct in response to the confession fell below the reasonable officer standard of performance--was irrelevant, and the confession's probative value was outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, and wasting time under FRE 403.  The Court refused to hold that a defendant in a criminal case may use out-of-court statements to mount an attack on the quality of the investigation that led to his indictment.  The Court similarly refused to acknowledge the existence of an affirmative defense based upon the failure of police to conduct an investigation as reasonably diligent officers.  

With regard to the indictment issue, the Court reviewed for plain error and found that defendant failed to show a reasonable likelihood that, but-for the error in his indictment, he would not have been found guilty at trial.  

With regard to allowing the jury to see the unredacted document relaying defendant's prior convictions, the Court found no clear abuse of discretion.  

Finally, the Court rejected defendant's arguments regarding Florida armed robbery not being a "violent felony" under the ACCA as precluded by the Supreme Court's decision in Stokeling.    


Tuesday, April 06, 2021

Parker: Affirming Denial of Davis-Based § 2255 Multiple-Predicate Motion

In Parker v. United States, No. 19-14943 (Apr. 6, 2021) (Lagoa, Hull, Marcus), the Court affirmed the denial of a § 2255 motion challenging § 924(o) and § 924(c) convictions predicated upon multiple crimes.  

This case involved an ATF reverse-sting operation with the goal of robbing a home believed to be the cocaine stash house of a Colombian cartel.  Movant was charged with the following: (1) conspiracy to commit Hobbs Act robbery; (2) conspiracy to possess with intent to distribute at least 5 kg or more of cocaine; (3) attempt to possess with intent to distribute at least 5 kg or more of cocaine; (4) conspiracy to use and carry a firearm during and in relation to a crime of violence and a drug trafficking offense; (5) using and carrying a firearm during and in relation to a crime of violence and a drug trafficking offense; (6) possessing a firearm as a convicted felon; (7) possessing a firearm as an unlawful alien; and (8) unlawfully entering the United States after having previously been removed.  He proceeded to trial and was found guilty on all counts. 

The Court affirmed the district court's denial of movant's motion because he failed to overcome procedural default, and because even if he could, he suffered no harm from the inclusion of an invalid predicate offense in his indictment and jury instructions.   

As to procedural default, movant advanced only an actual innocence argument, which the Court held failed because, like the movant in Granda, it was undeniable that movant's drug trafficking predicates were inextricably intertwined with the invalid Hobbs Act conspiracy predicate.  Therefore, it was "inconceivable" that the jury could have found that the movant conspired to, and did, use and carry a firearm in furtherance of his conspiracy to rob the house without also finding at the same time that he did so in furtherance of a conspiracy and attempt to obtain the cocaine in the same house.

The Court further noted that though movant's jury instructions suffered a defect not present in Granda--as to the § 924(o) charge, the court failed to instruct the jury that it had to unanimously decide which predicate or predicates supported the conviction--this did not change the outcome.  The predicate offenses were inextricably intertwined so that if the jurors found one applicable, they had to reach the same conclusion with respect to the others.   

The Court once again rejected movant's reliance upon the categorical approach, as well as on Alleyne.  Though the Court in Granda reached its determination regarding Alleyne in the context of a harmless error analysis, the question was not meaningfully different when addressed in an actual innocence context.

The Court also rejected movant's reliance upon In re Gomez, and noted that even though the movant failed to argue cause and prejudice to excuse any procedural default, its prior precedent in Granda prevented such a showing.        

Finally, the Court held that movant could not prevail on the merits of his claim because the jury could not have found that movant's gun use or gun conspiracy was connected to his conspiracy to rob the stash house without also finding that they were connected to his conspiracy and attempt to possess with intent to distribute the cocaine he planned to rob from the same stash house.  Any error was harmless.  In so holding, the Court once again relied extensively on its prior precedent in Granda.  The Court disagreed with movant's suggestion that Granda must not be followed because it conflicted with the Court's earlier decision in Parker.            


Wednesday, March 24, 2021

Pendergrass: Affirming Robbery Convictions with Similar Modus Operandi

In United States v. Pendergrass, No. 19-13681 (Mar. 24, 2021) (Rosenbaum, Luck, Anderson), the Court affirmed the defendant's convictions for Hobbs Act robbery and for carrying a firearm in furtherance of those robberies.

This case stems from a string of five robberies, all of which involved certain commonalities: a black-and-silver pistol held by a left-handed man; that same man dressed in a red hooded shirt under a long-sleeved black shirt with a distinctive white pattern on it; a single strap cross-body backpack; a phone number ending in 1011 that pinged off of cell towers that covered the areas of the robberies; bullets recovered from the scenes of the robberies that had cycled through the same firearm.

Prior to trial, defendant moved to suppress evidence from a phone recovered from his car searched for "handguns, long guns, drugs, bullets, blood and/or DNA" in an unrelated incident.  On the phone, officers found pictures and videos incriminating the defendant in the robberies.  The district court granted the motion to suppress the phone and its contents. The district court, however, denied defendant's motion to exclude Google geo-location data showing his whereabouts during the robberies.  The district court also denied defendant's motion to continue the trial on account of his newly appointed attorney, as well as his motion to dismiss a juror for cause because she was a probation officer.

Defendant raised six challenges to his convictions.  First, he argued that he was prejudiced by the district court's denial of his motion to continue trial.  The Court held that the district court did not abuse its discretion in denying defendant a continuance because defendant had two years to prepare for his trial, did not point to any evidence that would have been presented had the continuance been granted, his new counsel was prepared, and the evidence presented at trial was not voluminous or complicated.   

Second, defendant challenged the district court's failure to dismiss for cause the juror who was a probation officer.  The Court held that the district court did not abuse its discretion in declining to dismiss the juror because those who engage in community supervision are not covered by 28 U.S.C. 1863, which provides that members of the fire and police departments are barred from jury service.  The Court's holding was in line with the Tenth Circuit.  

Third, the Court held that any error in admitting the Google geo-location data was harmless beyond a reasonable doubt because the evidence introduced against the defendant was "crushing."  The Court so held without deciding whether the Google geo-location data should have been excluded as fruit of the poisonous tree.  

Fourth, the Court held that evidence sufficiently supported defendant's convictions on all five robberies because, when viewed all together, the evidence established a modus operandi and a pattern.  In so holding, the Court included a chart of the robberies and their shared similarities.  The Court also noted that when modus operandi evidence supports an inference that the same person committed multiple crimes, a jury can consider identity evidence from other robberies.

Fifth, the Court, reviewing challenges to the case agent's testimony for plain error, found no error.     

Sixth, the Court held that even assuming error, cumulative error did not warrant vacatur of the convictions.  Defendant failed to show that his substantial rights were affected by the aggregation of the alleged errors.  

Wednesday, March 17, 2021

Mayweather: Reversing Convictions for Hobbs Act Extortion and Remanding for New Trial

In United States v. Mayweather, No. 17-13547 (Mar. 17, 2021) (Branch, Tjoflat, Ed Carnes), the Court reversed convictions for Hobbs Act extortion and remanded for a new trial.  

The case stems from a large-scale FBI sting operation in response to concerns that there were Georgia Department of Corrections ("GDC") officers accepting bribes to smuggle contraband into prison.  The FBI arranged for an undercover informant to set up fake drug deals with uniformed corrections officers outside of the prison walls.  The corrections officers were instructed to wear their GDC uniforms as they transported the drugs with the expectation that police officers would not stop or detain them as a professional courtesy.  As a result, the defendants in this case were charged with, among other charges, Hobbs Act extortion.  

Defendants sought to present the jury with an entrapment instruction, which the district court denied.  The defendants also asked that the court provide the jury with the pattern Hobbs Act jury instruction updated post-McDonnell v. United States, 136 S. Ct. 2355 (2016), and to provide the jury with a definition of "official act," which the court also denied.  This appeal followed. 

The Court found that the district court erred on both its failure to give an entrapment jury instruction and to provide the jury with a definition of "official act."  As to the entrapment jury instruction, the Court clarified that to determine whether a defendant has produced enough evidence to merit an entrapment defense and jury instruction, a court need look only at whether there was sufficient evidence produced to raise the issue of government inducement, and not at whether the defendants were actually entrapped, which is a jury question.  With that in mind, the Court found that two of the four defendants had met their burden of production as to inducement, and therefore were entitled to an entrapment defense jury instruction.  The district court's failure to give the instruction resulted in reversible error, not harmless error.  The Court also rejected the government's contention that the defendants, having been recruited by other codefendants rather than a government agent, could at most claim only derivative entrapment, which the Eleventh Circuit does not recognize.    

As to the Hobbs Act extortion instruction, the Court first noted that the government bears the burden of proving that defendants took or agreed to take an "official act" to meet their burden of proving Hobbs Act extortion.  The Court then held that the district court did not abuse its discretion by refusing to give the post-McDonnell pattern jury instruction because that instruction could have been misleading to the jury on the particular facts of this case.

The Court held, however, that the district court was required to define "official act" in the charge it provided the jury because the government's definition of "official act" was too expansive, and therefore made it difficult for ordinary people to understand what conduct is prohibited.  The district court's failure to do so was reversible error because a reasonable likelihood exists that the jury applied the instruction given in an improper manner.   

Thursday, March 11, 2021

Granda: Affirming Denial of Davis-based Multiple Predicate § 2255 Motion as Procedurally Defaulted and on the Merits

In Granda v. United States, No. 17-15194 (Mar. 11, 2021) (William Pryor, Jordan, Marcus), the Court affirmed the district court's denial of Granda's second or successive § 2255 motion after United States v. Davis, 139 S. Ct. 2319 (2019), challenging his multiple predicate § 924(o) conviction.    

Granda's case involved a reverse sting operation, wherein Granda was charged with: (1) conspiracy to possess with intent to distribute cocaine; (2) attempting to possess with intent to distribute cocaine; (3) conspiracy to commit Hobbs Act robbery; (4) attempted Hobbs Act robbery; (5) attempted carjacking; (6) conspiracy to use and carry a firearm during and in relation to a crime of violence and drug-trafficking crime; and (7) possession of a firearm in furtherance of a crime of violence or drug trafficking crime.  

The Court affirmed the denial of Granda's § 2255 motion for two reasons: (1) he could not overcome procedural default, and (2) his claim failed on the merits.    

The Court sua sponte addressed its subject matter jurisdiction over Granda's § 2255 motion.  Granda sought and received leave to file a second or successive Johnson challenge--the Supreme Court had not yet decided Davis, so the Court did not (and could not then) certify that Granda's second motion contained the new rule of constitutional law Davis announced.  Nevertheless, the Court found that it did indeed have jurisdiction over Granda's motion because to resolve the Johnson claim the Court did authorize, the Court was obligated to apply the controlling Supreme Court law of Davis.      

First, the Court held that Granda's claim was procedurally defaulted, and that he could not establish cause, actual prejudice, or actual innocence.  As to cause, the Court found that Granda's claim was not sufficiently novel to establish cause.  As for actual prejudice, the Court stressed that actual prejudice means more than just the possibility of prejudice; it requires that the error worked to the movant's actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.  That is, movant had to show a substantial likelihood that the jury relied only on the constitutionally invalid predicate, because reliance on any of the other predicates would have provided a wholly independent, sufficient and legally valid basis to convict.  Here, after reviewing the evidence, the Court found that Granda could not make that showing because of the inextricably intertwined nature of his convictions.  That is, the crimes were so inextricably intertwined that no rational juror could have found that Granda carried a firearm in relation to one predicate but not the others.  Finally, the Court found that Granda could not establish that he was actually innocent.  The Court clarified that actual innocence means factual innocence, not mere legal innocence.  To demonstrate actual innocence of the § 924(o) offense, Granda would have had to show that no reasonable juror would have concluded that he conspired to possess a firearm in furtherance of any of the valid predicate offenses, which the Court held he could not--nor did he attempt to--do.  'The same shortcoming that prevents Granda from showing actual prejudice . . . makes it impossible for Granda to show that his § 924(o) conviction was in fact based on the conspiracy-to-rob predicate."  

Finally, the Court addressed the merits of Granda's claim.  The Court held that the inextricability of the alternative predicate crimes compelled the conclusion that the error Granda complained of--instructing the jury on a constitutionally invalid predicate as one of several potential alternative predicates--was harmless.  The Court clarified that on collateral review, the harmless-error standard mandates that relief is proper only if the court has grave doubt about whether a trial error of federal law has substantial and injurious effect or influence in determining the jury's verdict.  That is, in line with Brecht v. Abrahamson, 507 U.S. 619 (1993), a court may order relief only if the error resulted in actual prejudice.  On the record in Granda's case, the Court did not have "grave doubt" about whether Granda's § 924(o) conviction rested on an invalid ground.  In so holding, the Court declined to adopt Granda's arguments raising Stromberg v. California, 283 U.S. 359 (1931), or the categorical approach.     

Judge Jordan concurred in part and concurred in the judgment.  He noted that because Granda could not prevail on the merits, he would not have addressed the issue of procedural default.      

Wednesday, March 10, 2021

Rogers: Affirming 360-Month Sentence for Production and Distribution of Child Pornography

In United States v. Rogers, No. 18-13532 (Mar. 9, 2021) (Jordan, Jill Pryor, Branch), the Court affirmed defendant's sentence after he pleaded guilty to two counts of production of child pornography, in violation of 18 U.S.C. § 2251(a), and one count of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2).  

Defendant raised various challenges to his 360-month sentence: (1) the district court improperly attributed a four-level enhancement under U.S.S.G. § 2G2.2(b)(4) for sadism/masochism; (2) application of both U.S.S.G. §§ 2G2.2(b)(5) and 4B1.5 was arbitrary and constituted impermissible double counting; (3) the district court improperly applied a two level enhancement under U.S.S.G. § 2G2.2(b)(6) for the use of a computer; (4) the district court erred in excluding certain evidence at his sentencing hearing; and (5) his sentence was substantively unreasonable. 

As to application of the four-level enhancement under § 2G2.2(b)(4), the Court found its application appropriate because the image depicted the defendant's hands around the throat of the minor victim as she lay nude on the bed, appearing as though he was choking her, thereby, at a minimum, depicting violence.  In so finding, the Court construed the words from the guideline--"sadistic," "masochistic," and "depictions of violence"--according to their ordinary and natural meaning. 

The Court next considered whether application of both § 2G2.2(b)(5)--which provides for a five-level guidelines increase if the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor--and § 4B1.5--which provides for a five-level increase where the defendant's instant offense of conviction is a covered sex crime and the defendant engaged in a pattern of activity involving prohibited sexual conduct--was arbitrary and constituted impermissible double counting.  Reviewing for plain error, the Court held that the defendant had failed to establish plain error.  Reviewing the language of the guidelines, the Court found that their plain language established that the Sentencing Commission intended for the enhancements to apply cumulatively.  

As for defendant's challenge to the two-level enhancement under § 2G2.2(b)(6) for the use of a computer for the distribution of child pornography, the Court dismissed it as squarely foreclosed by United States v. Little, 864 F.3d 1283 (11th Cir. 2017).  

Next, the Court addressed the district court's exclusion of evidence at the sentencing hearing regarding two pending state statutory rape cases involving the victim.  The defendant argued that the district court violated his constitutional rights under the confrontation clause, his right to due process, and his right to present a defense when it prevented him from cross-examining the detective about the victim's involvement in two other pending statutory rape cases involving adult men, which he maintains was valuable impeachment and mitigation evidence.  The Court held that the district court's denial of defendant's request did not violate his constitutional rights as the confrontation clause and right to cross-examination do not extend to non-capital sentencing proceedings.  The Court also did not find any abuse of discretion in the district court's decision to disallow the defendant the cross-examination he sought.    

Finally, the Court held that defendant's within-guidelines 360-month sentence was substantively reasonable.  

Knights: Race Not A Factor in Seizure Inquiry

In United States v. Knights, No. 19-10083 (Mar. 10, 2021) (William Pryor, Rosenbaum, K. Michael Moore), the Court granted defendant's motion for panel rehearing, vacated its original opinion (published August 3, 2020), and substituted in its place a new opinion again affirming the district court's denial of defendant's motion to suppress.   

Two officers saw defendant and a friend around 1:00 a.m. in a car that was parked in the front yard of a home in a "high crime" area.  Suspecting that the men might be trying to steal the car, officers parked near the car, approached the car with a flashlight, and knocked on the driver's side window, where defendant was seated.  When the defendant opened the car door, officers smelled marijuana and searched the car, finding ammunition and firearms.  Defendant was charged with being a felon in possession.  

Defendant moved to suppress his admissions and the evidence found during the officers' search, arguing that they were fruits of an illegal seizure that occurred when--without reasonable suspicion--officers parked behind his car, or, at the latest, when they walked up to his car.  The district court found that the officers did not seize the defendant when they parked their patrol car and walked up to him because the encounter was consensual--the defendant was free to walk or drive away.  On appeal, the defendant argued that his perspective as a young black man was relevant to the question of whether a seizure occurred.  In its original opinion, the Court agreed that the age and race of a suspect may be relevant factors, but concluded that they were not decisive in defendant's appeal.  In defendant's petition for rehearing, he argued that the Court erred by not treating his identity as a factor that mattered, and that the correct inquiry was whether a reasonable young black man would have felt free to walk or drive away from the police.

Upon reconsideration, the Court once again concluded that the encounter was consensual, and that a reasonable person would have felt free to leave.  The officers did not activate their patrol-car lights or siren, display their weapons, touch the defendant, or even speak to him, much less issue any commands.  Their use of a flashlight did not communicate a show of authority either.  The Court found persuasive the fact that the defendant's friend did, in fact, ignore the officers and walk away.  In response to defendant's argument that a reasonable person would not have walked away because doing so would have required abandoning his car in a high-crime area, the Court found that two officers were near the car and defendant could have easily returned as soon as they left. 

The Court went on to hold that, unlike age, the race of a suspect is never a factor in the threshold seizure inquiry (though it may be considered when determining the voluntariness of a seizure).  The existence of a seizure is an objective question, so the Court asks whether a reasonable person would have believed he was not free to leave in light of the totality of the circumstances.  The circumstances of the situation are the key to this inquiry.  A suspect's personal characteristics--such as age--are considered only insofar as they have an objectively discernable relationship to a reasonable person's understanding of his freedom of action.  The Court concluded that most personal characteristics, including race, do not lend themselves to objective conclusions.  The Court further noted that even if it were possible to derive uniform attitudes from a characteristic like race, there is no workable method to translate general attitudes towards the police into rigorous analysis of how a reasonable person would understand his freedom of action in a particular situation.  And finally, the Court noted that even if it could devise an objective way to consider race, it could not apply a race-conscious reasonable-person test without running afoul of the Equal Protection Clause.  

Judge Rosenbaum, concurring in the judgment only, wrote separately to "emphasize the perils that ambiguous police interactions can cause and to respectfully suggest that the Supreme Court consider adopting a bright-line rule requiring officers to clearly advise citizens of their right to end a so-called consensual police encounter."   

Monday, March 01, 2021

Goldstein: Affirming Convictions for Conspiracy and Mail, Wire, and Securities Fraud

In United States v. Goldstein, No. 18-13321 (Feb. 26, 2021) (Wilson, Branch, Julie Carnes), the Court  affirmed defendants' convictions and sentences for conspiracy, mail fraud, wire fraud, and securities fraud. 

Defendants' convictions arose from two fraud schemes: (1) a "pump and dump" market-manipulation operation where defendants artificially inflated the price of MCGI stock before selling it off for a profit; (2) a plan to sell shares of a privately-traded company, Find.com, via misleading and fraudulent representations.  The defendants proceeded to trial and were found guilty of two counts of conspiracy, two counts of mail fraud, seven counts of wire fraud, and one count of securities fraud.  Defendants were sentenced to 10 years in prison, and each ordered to pay restitution in the amount of $1.5 million.  The district court also imposed a forfeiture order against each defendant for the total amount of the proceeds: approximately $1.9 million.  The court specified, however, that the government could not recover more than the total of $1.9 million from defendants under the forfeiture order.  

First, defendants jointly challenged the admission of wiretap evidence as violative of the Fourth Amendment.  They argued that the agent's affidavit in support of the wiretap application did not establish probable cause (because any probable cause that had existed was stale) or satisfy the necessity requirement.  The Court disagreed on both fronts, and in any case, found that the good faith exception to the exclusionary rule applied.         

Second, defendants challenged the validity of the wiretap orders issued under Franks v. Delaware, which requires an evidentiary hearing when a defendant makes a substantial preliminary showing that statements or omissions made in an affidavit supporting a wiretap are deliberately false or made with reckless disregard for the truth.  The Court affirmed the district court's denial of  Franks hearing.    

Third, defendants argued that there was a material variance between the indictment's allegations concerning the Find.com scheme and the evidence the government presented at trial to prove the scheme.  The Court held that the defendants had not established a material variance, much less that any deviation between the facts alleged in the indictment and those proved at trial warranted reversal.  The Court noted that a fatal variance exists only where the evidence at trial proves facts different from those alleged in the indictment, as opposed to facts which, although not specifically mentioned in the indictment, are entirely consistent with its allegations.  

Fourth, defendant Bercoon argued that the government engaged in prosecutorial misconduct during its closing argument by suggesting that the jury could infer his intent to commit fraud from the fact that, rather than contacting law enforcement, he had pursued another pump-and-dump scheme with a co-conspirator the day after learning that the FBI was investigating him for market manipulation.  Defendant's argument was subject to plain error review, and failed. 

Fifth, defendant Goldstein challenged the district court's denial of his motion to suppress statements he made to an SEC attorney during a preliminary, informal telephone interview.  He argued that the SEC attorney's promise of confidentiality rendered his statements involuntary.  The Court affirmed the lower court's denial of the motion to suppress because the SEC attorney testified that it was her practice to read the SEC's Privacy Act script at the beginning of every interview, which informs the witness that the SEC routinely shares information obtained from witnesses with other authorities for investigative and enforcement purposes.  

Sixth, defendant Goldstein challenged the district court's denial of his request for an evidentiary hearing to determine whether the SEC's civil investigation and the US Attorney's criminal investigations improperly merged, depriving him of his due process rights.  The Court held that the district court did not abuse its discretion in denying Goldstein's request.   

Seventh, defendants argued that the district court's $1.9 million forfeiture order improperly held them jointly and severally liable, in violation of the Supreme Court's decision in Honeycutt v. United States, 137 S. Ct. 1626, 1632 (2017).  The Court assumed, without deciding, that Honeycutt's reasoning applied to the forfeiture statute at issue here.  The Court further held that any argument that Honeycutt per se prohibits ordering joint and several forfeiture has no basis in the Supreme Court's decision.  Here, the district court did not err because it limited the forfeiture to the total amount of proceeds each defendant personally acquired.  

Finally, defendant Bercoon filed a pro se motion to dismiss his indictment, alleging prosecutorial misconduct based on what he characterized as numerous instances of the FBI agent's offering false testimony before the grand jury.  The Court found no merit in defendant's arguments.            


Friday, February 26, 2021

Harris: Affirming Denial of Compassionate Release

In United States v. Harris, No. 20-12023 (Feb. 26, 2021) (Jordan, Grant, Ed Carnes), the Court affirmed the denial of defendant's motion for compassionate release under 18 U.S.C. 3582(c)(1)(A).  

As an initial matter, the Court sua sponte addressed its jurisdiction to hear the case.  It held, for the first time, that 3582(c)(1)(A)'s exhaustion requirement is not jurisdictional, and is instead a non-jurisdictional claim-processing rule.

Addressing the merits of the appeal, the Court first noted that because the statute speaks permissively and says the district court "may" reduce a defendant's sentence, the district court's decision is discretionary and subject to review only for abuse of discretion. 

The Court accepted, without deciding, that medical conditions can rise to being "extraordinary and compelling" reasons warranting a sentencing reduction, and concluded that the medical conditions presented here were not.  Of the conditions presented, only hypertension appears on the CDC's list of conditions, and it appears only as one that means an adult with it "might be at an increased risk" of severe illness from COVID-19.  As a result, the Court concluded that the district court did not abuse it discretion in deciding that defendant's medical conditions were not "extraordinary and compelling" reasons to grant compassionate release.  

The Court also concluded that the district court's independent consideration of the 3553(a) factors and 1B1.13 n.1 further supported its holding that the district court did not abuse its discretion in denying defendant's motion.  

The Court noted in a footnote that it was not reaching the issue of whether a district court is required to consider 1B1.13 n.1.       

Monday, February 22, 2021

Abovyan: Affirming Convictions Relating to Healthcare Fraud and Dispensing a Controlled Substance

In United States v. Abovyan, No. 19-10676 (Feb. 22, 2021) (William Pryor, Hull, Marcus), the Court affirmed defendant's convictions and sentences for conspiring to commit healthcare fraud, conspiring to possess with intent to dispense controlled substances, and seven counts of unlawfully dispensing a controlled substance.  

The alleged healthcare fraud scheme here involved substance abuse treatment centers, whose patients often consisted of individuals from sober homes and halfway houses.  Defendant, a physician, was hired on as the medical director of these treatment centers. 

Defendant first challenged the sufficiency of the evidence supporting his conviction for conspiracy to commit healthcare fraud.  He accepted that a healthcare fraud conspiracy existed, but that the government's evidence was insufficient to prove his knowledge of, and participation in, it.  At most, he argued, the government only showed negligent medical practices on his part, and not willful participation in a criminal conspiracy.  The Court rejected this argument, reiterating that for a defendant to be found guilty of conspiracy, the evidence need only demonstrate that he was aware of the conspiracy's essential nature, not that he knew all of its details, nor that he was a major player, nor that he had direct contact with other alleged co-conspirators.  Additionally, the government's evidence may be circumstantial.  Here, the Court found that the government introduced ample evidence to support the defendant's conviction, though said evidence was largely circumstantial.  

Second, Defendant challenged the sufficiency of the evidence as to the Controlled Substances Act counts.  These counts related to defendant's prescribing of buprenorphine, a Schedule III narcotic that requires a special license and X Number issued by the DEA when being prescribed for addiction treatment.  No special license or X Number is needed when prescribing buprenorphine for other things, like pain.  Here, Defendant argued that the government failed to prove his buprenorphine prescriptions were not for a legitimate medical purpose or were outside the scope of professional practice.  The Court disagreed.  It found that while prescribing buprenorphine without an X Number was not a per se violation of the Act, defendant prescribed it to patients for pain/withdrawal when those patients were not experiencing pain/withdrawal, and he provided no medical addiction treatment with the prescription so that his prescriptions did not serve a legitimate medical purpose. 

Third, defendant challenged, for the first time, the district court's failure to instruct the jury on the elements of substantive healthcare fraud, which was the object of the healthcare fraud conspiracy charged in Count One.  The Court rejected this argument, reasoning that an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or unreliable.  While such an error has been found to be plain in other cases, it was not so here because the court's instruction referred to the superseding indictment, which itself incorporated the statutory elements of healthcare fraud into the conspiracy charge.  Additionally, any omission did not affect the defendant's substantial rights since his theory of defense acknowledged that there was a healthcare fraud scheme.  

Fourth, defendant argued that, as to the Controlled Substances Act offenses, the court abused its discretion by declining to give his requested instruction on the difference between criminal and civil liability.  The Court found no abuse of discretion because defendant's proposed instruction was not a correct statement of the law.  

Fifth, Defendant challenged the court's instructions as they related to the X Number.  He argued that the instruction given created strict Section 841(a) liability for the violation of Section 823(g), which contains the licensing requirement for an X Number.  The Court disagreed, and found the instruction to be a correct statement of the law. 

Sixth, with regard to sentencing, defendant argued that the district court erred in calculating his advisory guidelines range based on intended loss, instead of actual loss.  He argued doing so was erroneous because his codefendants' sentences were based on actual loss, thereby creating an unwarranted sentencing disparity by using the higher intended loss when calculating his guidelines range.  The Court found no error, since U.S.S.G. 2B1.1 suggests using the greater of actual or intended loss.  Additionally, the Court found no unwarranted sentencing disparities because codefendants cooperated and pleaded; they were not similarly situated to defendant.  

Seventh, defendant argued that the district court erred in determining the amount of the intended loss because it was not supported by a preponderance of the evidence.  He argued that the court failed to make underlying findings as to the scope of the criminal activity that defendant agreed to undertake and the reasonable foreseeability of the loss amount attributed to him.  The Court rejected this argument as waived.  And, in any event, though the district court did not make individualized findings when determining reasonable foreseeability, an appellate court may affirm if the record otherwise supports the court's determination.  The record did so here.  

Finally, defendant argued that his Count Two sentence exceeded the statutory maximum penalty.  Count Two alleged that defendant conspired to distribute controlled substances spanning Schedules II, III, and IV, each of which carries a different statutory maximum penalty.  The jury reached a general verdict for Count Two and did not specify which substance was involved.  Defendant argued that therefore, he should have received the most lenient statutory maximum penalty.  Because defendant did not raise this issue before the district court, the Court reviewed for plain error.  The Court found the error to be plain, but found that it did not affect defendant's substantial rights.         

Monday, February 15, 2021

Maradiaga: Affirming Conviction for Use of Fraudulent Immigration Document

In United States v. Maradiaga, No. 19-11889 (Feb. 12, 2021) (Wilson, Lagoa, Hull), the Court affirmed defendant's conviction for use of a fraudulent immigration document, in violation of 18 U.S.C. § 1546(a).    

Defendant used an order of supervision from the Department of Homeland Security to obtain a Florida driver's license.  He was charged with one count of knowingly possessing and using a document prescribed by statute and regulation as evidence of authorized stay in the United States, specifically, an ICE order of supervision, which he knew to be forged, counterfeited, altered, and falsely made.  He proceeded to trial and was found guilty.  On appeal, he argued the following: (1) his conviction must be vacated because he was charged with and convicted of conduct that does not constitute a crime within the meaning of § 1546(a); (2) the district court's jury instruction on the elements of § 1546(a) offense constructively amended the indictment; and (3) comments by the government during closing arguments misled the jury and improperly bolstered a government witness.

As to the first issue, the Court relied upon its prior decision in United States v. Chinchilla, No. 19-10987 (11th Cir. Feb. 11, 2021), in finding that orders of supervision fall within the scope of § 1546(a).  

As to the second issue, the Court found that any error was invited because defendant proposed the very jury instruction he was challenging on appeal, and failed to object to the instruction at trial.  Additionally, were the Court to review the error, any review would be for plain error, and defendant could not show any prejudice.

As to the third issue, while the Court agreed that some of the government's statements in closing were misleading, defendant's challenge failed because he could not show prejudice.     

Thursday, February 11, 2021

Chinchilla: Order of Supervision Falls Under Ambit of 18 U.S.C. § 1546(a)

In United States v. Chinchilla, No. 19-10987 (Feb. 11, 2021) (Wilson, Lagoa, Hull), the Court reversed the district court's order dismissing the superseding indictment and remanded for further proceedings. 

Defendant was charged with violating 18 U.S.C. § 1546(a) for allegedly using a fraudulent order of supervision to obtain a driver's license.  Section 1546(a) criminalizes the knowing use, attempt to use or possession of a forged, counterfeited, altered, fraudulently procured, or unlawfully obtained document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States.  An order of supervision authorizes an unlawful immigrant to be released from custody into the community and to remain living in the United States for an indefinite period of time pending removal.  Such an order may authorize an immigrant to seek employment in the United States, and various federal regulations identify orders of supervision as evidence of lawful presence in the United States for purposes of receiving Social Security and federal health care benefits.  The State of Florida also accepts from applicants seeking to obtain a Florida driver's license an order of supervision as proof of legal presence in the United States.      

Defendant moved to dismiss the superseding indictment for failing to state an offense, arguing that the term "authorized stay" means "lawful presence" in the United States and that no federal statute or regulation expressly identifies an order of supervision as "evidence of authorized stay in the United States."  The district court dismissed the superseding indictment after concluding that an order of supervision does not qualify as a document "prescribed by statute or regulation . . . as evidence of authorized stay . . . in the United States" as required by § 1546(a).

In reversing the district court, the Court considered the plain and ordinary meaning of the statutory language as it was understood at the time the law was enacted, and concluded that the phrase "prescribed by statute or regulation . . . as evidence of authorized stay . . . in the United States" refers to a  document directed by a statute or regulation as proof that its recipient has formal approval to temporarily remain in the United States.  The Court held orders of supervision to be just such a document, and therefore reversed and remanded.         

Friday, February 05, 2021

Isaac: Affirming 80-year Sentence for Producing and Possessing Child Pornography

In United States v. Isaac, No. 19-11239 (Feb. 5, 2021) (Branch, Luck, Ed Carnes), the Court affirmed defendant's convictions and 80-year sentence for producing and possessing child pornography.  

Defendant was charged with two counts of producing child pornography and one count of possessing child pornography.  He moved to suppress the evidence found on one of his cellphones, which was found in his car after he had been arrested.  Defendant argued that the warrant authorizing the search of his phone was invalid because the search of his car was an illegal search incident to arrest.  Defendant also challenged the district court's application of a two-level enhancement under U.S.S.G. 2G2.1(b)(5) because the victim was a minor in the defendant's custody, care of supervisory control; a five-level increase under U.S.S.G. 4B1.5(b)(1) for engaging in a pattern of activity involving prohibited sexual conduct; and an enhancement under U.S.S.G. 2G2.2(b)(5) for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor.  Finally, defendant challenged his sentence as substantively unreasonable.   

 As to the suppression issue, the Court affirmed the district court's denial of defendant's motion to suppress the evidence from his cellphone because the cellphone was recovered pursuant to a valid inventory search.  Here, the car was impounded and searched in line with the police department's standard operating procedures ("SOP").  Per the SOP, officers may impound a car if all reasonable efforts to provide the vehicle driver with alternatives to impoundment have been unsuccessful or impractical due to time or staffing constraints, and must search and inventory a car that has been impounded.  The Court did not find any clear error in the district court's factual determinations as to this issue.

As to the custody, care, or supervisory control enhancement, the Court interpreted its application as broadly inclusive, and defined "care" to mean simply that a person is responsible for looking after the child's wellbeing, even if just temporarily.  It reasoned that because the commentary list of those who would qualify for the enhancement is nonexhaustive and the enhancement is to be applied broadly, the operative language must include defendants whose actual roles in the care of children are comparable to one or more of the commentary's examples.  The Court's reasoning is in line with reasoning from the First, Fifth, and Eighth Circuits.  Under this construction, the minor victim was under the defendant's care because defendant was no different than a temporary caretaker.       

As to the pattern of behavior enhancements, the Court found that the two separate occasions of sexual abuse established a "pattern."  

Finally, the Court found the sentence substantively reasonable because the district court carefully considered the 3553(a) factors, weighed them without making a clear error of judgment, and provided sufficient justification for the sentence imposed.  That the defendant won't live to see the end of his 80-year sentence does not establish that the sentence is unreasonable.  


Armstrong: Grant of Sentence Reduction Not a New and Intervening Judgment for Purposes of AEDPA's Bar on SOS Petitions

In Armstrong v. United States, No. 18-13041 (Feb. 5, 2021) (Wilson, Lagoa, Anderson), the Court held that  a sentence reduction under 18 U.S.C. Section 3582(c) does not constitute a new, intervening judgment for purposes of the bar on second or successive section 2255 motions under the AEDPA.  

Here, movant filed his first section 2255 motion in June 2014.  While that motion was pending, the district court sua sponte reduced movant's sentence based on Amendment 782 to the Sentencing Guidelines.  Following that reduction, the district court denied movant's section 2255 motion.  Movant then filed a second section 2255 motion in 2018, challenging his new sentence.  The district court denied this second section 2255 motion as unauthorized. 

The Court held that movant was required to get permission prior to filing his second section 2255 motion because it was second or successive.  It reasoned that because a sentence modification does not constitute a de novo resentencing, it does not constitute a new judgment, and therefore does not reset the count for purposes of AEDPA's bar on second or successive section 2255 motions.         

Morales: Upholding Search Under Good Faith Exception

In United States v. Morales, No. 19-11934 (Feb. 5, 2021) (Jordan, Marcus, Ginsburg), the Court upheld a search conducted pursuant to a warrant based upon the good faith exception to the exclusionary rule.

Law enforcement applied for and received a search warrant for defendant's home on the basis of contraband recovered after two trash pulls conducted three days apart.  Defendant moved to suppress the evidence recovered during the search of his home, arguing that law enforcement's affidavit in support of a search warrant did not establish probable cause because it did not explain the reasons for the trash pulls, reported only minimal amounts of marijuana, and made no mention of items linking the trash to the defendant's residence.  Defendant also argued that the affidavit deliberately or recklessly contained false information because not all the evidence described in the affidavit appeared in the photographs submitted with the affidavit, and the affidavit improperly omitted the fact that defendant's house abutted an open lot where marijuana use was common.   

The Court specifically avoided resolving the issue of whether trash pull evidence alone can support a finding of probable cause.  The Court held that even assuming the affidavit did not establish probable cause, law enforcement officers relied on the warrant in good faith, so defendant was not entitled to suppression.  Here, officers did everything they should have--obtained and relied on a warrant from a neutral magistrate and did not mislead the magistrate--so suppression would do nothing to deter future police misconduct.  No exceptions to the good faith rule applied, and law enforcement's reliance on the warrant was objectively reasonable.  In conducting its analysis of whether law enforcement's reliance on the warrant was objectively reasonable, the Court considered an unobjected-to fact from the PSI that trash pulls were conducted after law enforcement received an anonymous tip that defendant was selling narcotics from his home.     

The Court also denied defendant's challenge to the search warrant on staleness grounds.  The defendant argued that because the trash pulls were two weeks old by the time the warrant issued, the evidence was stale.  Reviewing for plain error, and finding no 11th Circuit or Supreme Court precedent holding that marijuana evidence found in two trash pulls conducted three days apart becomes stale after two weeks, the Court rejected the argument.

Judge Jordan concurred in part, and concurred in the judgment.  He joined the Court's opinion as to all but Part II.B.  He would not have considered the anonymous tip because it was not in the affidavit submitted to obtain the search warrant, the government did not disclose the tip in arguing the good-faith exception in the district court, neither the magistrate judge nor the district court relied on the tip in ruling on the suppression motion, and the existence of the tip only became known when the probation office prepared the PSI.  He reasoned that because the government bears the burden of establishing good faith, and it failed to bring the tip to the attention of the court below, it should not now benefit from its failure.            

Wednesday, February 03, 2021

Cannon: Upholding Convictions for Conspiracy to Commit Hobbs Act Robbery, Conspiracy to Possess with Intent to Distribute Cocaine, Using and Carrying a Firearm During a COV and Drug Trafficking Crime, and Felon-in-Possession

In United States v. Cannon, No. 16-16194 (Feb. 3, 2021) (William Pryor, Hull, Marcus), the Court affirmed defendants' convictions for conspiracy to commit Hobbs Act robbery, conspiracy to possess with intent to distribute cocaine, using and carrying a firearm during a crime of violence and a drug trafficking crime, and possession of a firearm by convicted felons.  All charges stemmed from a reverse stash house sting.

First, as to defendants' selective prosecution claim, the Court reiterated the "demanding" burden defendants must carry when seeking to establish a claim of selective prosecution in violation of the Constitution, and held that statistical data reflecting the treatment of only one particular group fails to meet that burden because it fails to show that similarly situated persons were treated differently.  That is, telling the court how many minorities have been prosecuted does nothing to prove how many non-minorities have not been.  The Court also reiterated that defendants' preserved only a selective prosecution claim, and not a selective enforcement claim.

Second, the Court rejected defendants' argument, raised for the first time on appeal, that the indictment was multiplicitous because it improperly charged two conspiracies when only a single conspiracy occurred.  The Court so held because the conspiracies have separate elements, and each requires proof of a fact which the other does not.       

Third, the Court rejected the defendants' argument that the creation of the stash house robbery scheme by the government constituted outrageous government conduct in violation of the Fifth Amendment.  The Court first questioned whether such a defense has ever even been recognized by the Court or the Supreme Court.  The Court then held that the government's conduct was not outrageous; merely presenting defendants with a non-unique opportunity to commit a crime, of which they are more than willing to take advantage, does not amount to outrageous government conduct.  The Court so held even though the government's CI suggested the robbery, and an undercover detective invented the idea of a stash house filled with cocaine and armed guards and offered defendants a van to use.    

Fourth, the Court affirmed the district court's decision not to give an entrapment instruction, finding that defendants failed to present sufficient evidence to create a jury issue on inducement.

Fifth, the Court rejected defendants' sentencing entrapment argument, which was raised for the first time on appeal.  The Court held that the Supreme Court's decision in Apprendi has no application to a sentencing entrapment defense.       

Sixth, the Court held that the district court did not abuse its discretion in dismissing a juror who knew the defendant's wife and styled her hair on a regular basis.  It was well within the district court's discretion to conclude that the juror's relationship to the defendant's wife was financial in nature and too close, and that this created a greater likelihood of her being influenced by her relationship to the defendant's wife.  And, in any case, defendants failed to show that the replacement of the juror resulted in prejudice requiring reversal.  

Seventh, the Court rejected defendant's argument that his right to have all proceedings in open court transcribed was violated because the court reporter failed to transcribe the recorded conversations that were admitted into evidence.  Both the recordings and corresponding written transcripts were admitted into evidence at trial, so, under these circumstances, nothing in the Court Reporter Act requires that the audio or video recordings also be transcribed by the court reporter. 

Finally, the Court considered defendants' argument that the section 924(c) count must be dismissed because one of the two predicates--conspiracy to commit Hobbs Act robbery--is an invalid predicate and the jury entered a general verdict.  The Court first agreed that it was error for the district court to deny defendants' motion to dismiss the predicate of Hobbs Act conspiracy and to submit that crime as a valid predicate in Count 3 for the jury's consideration.  In so finding, the Court cited to Stromberg v. California for the proposition that it is error to instruct a jury that it can convict on alternative theories of guilt, one of which is invalid.  Nonetheless, the Court found that the government had carried its burden in demonstrating that any error was harmless because the trial record makes clear that the two predicate conspiracy crimes were so inextricably intertwined that no rational juror could have found that defendants carried a firearm in relation to one predicate but not the other.  The Court emphasized the importance of the factual record when evaluating section 924(c) crimes after Davis through its discussion of its prior published opinions in In re Navarro, In re Cannon, and In re Gomez.     




Tuesday, January 26, 2021

Garcia: Prior Opinion Vacated

In Garcia v. United States, No. 19-14374 (Jan. 26, 2021) (Grant, Luck, Ed Carnes) (per curiam), the Court vacated its prior published opinion in Garcia v. United States, __ F.3d __, 2021 WL 68305 (11th Cir. Jan. 8, 2021), which affirmed the denial of a certificate of appealability on a Davis claim.  The petitioner's application for certificate of appealability is now being held in abeyance pending the Court's decision in Granda v. United States, No. 17-15194, and/or Foster v. United States, No. 19-14771.      

Wednesday, January 13, 2021

Williams: 2255 Movant Failed to Satisfy Beeman Burden Where Legal Landscape in Equipoise

In Williams v. United States, No. 19-10308 (Jan. 13, 2021) (Jordan, Lagoa, Brasher), the Court affirmed the denial of a 2255 motion challenging an ACCA enhancement in light of Johnson.    

The Court held that the movant failed to meet his burden of establishing that the sentencing court relied solely upon the residual clause, as required by Beeman.  The ACCA enhancement was based, in part, on a prior conviction for federal kidnapping, in violation of  18 U.S.C. 1201(a)(1).  The question on appeal was under what circumstances the legal landscape at the time of a defendant's sentencing can establish, as a matter of historical fact, that the sentencing court relied on the unconstitutionally vague residual clause of the ACCA to classify a prior felony as violent. 

The Court first determined, in line with the Eighth and Tenth Circuits, that de novo review was appropriate because determining the legal environment requires a legal conclusion about the controlling law at the time of sentencing.  The movant argued that the case law at the time made it unlikely that the sentencing court relied on the elements clause, citing to two Eleventh Circuit published opinions indicating the same.  In response, the government cited to a different published Eleventh Circuit opinion in support of its argument that the district court could just as likely used the elements clause to categorize the federal kidnapping conviction as violent.  The Court held that because the legal landscape was so uncertain--it provides no satisfactory answer in the movant's favor--the movant failed to meet his Beeman burden.  That is, because there is no clear precedent on point dictating a specific result, the Court would merely be guessing if it was to say that the sentencing court relied on the residual clause alone.  As a result, the movant failed to meet the Beeman more-likely-than-not standard.  If the evidence is silent or in equipoise, then the party with the burden fails.  

Judge Jordan dissented.  He noted that for a Johnson 2255 movant to succeed, he must show, by a preponderance of the evidence, that the district court relied only on the ACCA's residual clause.  But, the preponderance of the evidence standard does not require a movant to make a showing to a high degree of certainty.  Instead, the standard results in a roughly equal allocation of the risk of error between litigants.  So, a movant meets his evidentiary burden so long as the evidence tips the scales just one little bit in his favor.  Here, Judge Jordan found that movant's reliance on two binding Eleventh Circuit opinions did just that.           

Friday, January 08, 2021

Amodeo: 2241 Petition Unavailable for Actual Innocence Claim

In Amodeo v. FCC Coleman-Low Warden, No. 17-15456 (Jan. 8, 2021) (Ed Carnes, Branch, Luck), the Court affirmed the dismissal of a 2241 habeas petition claiming actual innocence.

Applying its en banc decision in McCarthen, the Court held that the petitioner’s claim could not be brought in a 2241 petition because 2255 was not an inadequate or ineffective remedy.  Because the petitioner could have brought that type of claim in an initial 2255 motion, 2255 was not inadequate or ineffective, even if procedural bars would have precluded petitioner from prevailing in a 2255 motion.  Under McCarthen, the Court explained, two categories of claims may be brought under 2241: 1) those challenging the execution of a sentence, such as the deprivation of good-time credits; and 2) those in which the sentencing court has been dissolved or is no longer available, as in the military context. 

Garcia: Denying COA in a Davis Dual Predicate Situation Based on Beeman

In Garcia v. United States, No. 19-14734 (Jan. 8, 2021) (Grant, Luck, Ed Carnes) (per curiam), the Court affirmed the denial of a COA on a Davis claim. 

Relying on Beeman, the Court held that the movant could not meet his burden to prove that his 924(o) conviction was predicated solely on Hobbs Act conspiracy.  After distinguishing In re Gomez and In re Cannon as SOS cases, the Court rejected the movant’s argument that it should assume that the 924(o) was based on the least culpable predicate, and it also rejected his reliance on Alleyne.  Although acknowledging that it was dicta, the Court applied In re Cannon’s “inextricably intertwined” analysis to conclude that he could not meet his burden to prove that his 924(o) offense was predicated solely on Hobbs Act conspiracy.  The Court did not address Stromberg or its progeny.

Wednesday, January 06, 2021

Kushmaul: Prior Florida Conviction for Promoting Minor Sexual Abuse Triggered CP Mandatory Minimum

In United States v. Kushmaul, No. 20-10924 (Jan. 6, 2021) (Jordan, Luck, Tjoflat) (per curiam), the Court, without oral argument, affirmed the defendant’s 15-year mandatory minimum sentence for distributing child pornography.

The district court applied the mandatory minimum because the defendant’s prior Florida conviction for promoting the sexual performance of a child related to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.  The Court found no plain error.  It rejected the defendant’s categorical-approach argument that the Florida offense was obviously broader than the federal definition because the former encompassed clothed as opposed to unclothed minors.  And because there was no precedent on point, the defendant could not show plain error.