Eleventh Circuit Court of Appeals - Published Opinions
Friday, April 30, 2021
Wednesday, April 28, 2021
In United States v. Pacheco-Romero, 19-14446 (Apr. 28, 2021) (William Pryor, Jill Pryor, Self), the Court affirmed the district court's order that funds not earned by disqualified counsel be paid to the CJA fund.
This appeal involves the question of what happens to money paid to a law firm when that law firm is subsequently disqualified from representing any of the parties in the case based upon a conflict of interest. Here, six defendants retained the same law firm to represent them in a case where they were charged with conspiracy to possess with intent to distribute methamphetamine. The law firm had collected a total of $21,000 from the defendants. After the firm was disqualified, questions arose about whether the law firm had earned the entire fee it had collected, and, if not, whether the portion of the fee that did not belong to the law firm should be refunded to the defendants or used to reimburse the fees and expenses of the defendants' appointed CJA counsel. Because the law firm refused to disclose what portion of the fee, if any, the law firm had not earned, the district court ordered the law firm to pay $15,000 into the court's registry. The court then determined that $8,000 of the funds in the registry had been earned. The district court directed that the remaining $7,000 be paid to the CJA fund. The law firm appealed the orders directing them to pay $15,000 into the court's registry, and directing that $7,000 of those funds should be paid to the CJA fund. The United States did not participate in the appeal because it had not been involved in any of the proceedings below.
This Court affirmed in part and dismissed in part. First, the Court reviewed its appellate jurisdiction over each of the grounds raised on appeal. The Court noted that while 28 U.S.C. § 1291 grants appellate courts jurisdiction to review decisions made by district courts in a judicial capacity, orders under 18 U.S.C. § 3006A(f)--directing a person to pay money into the court's registry or directing a court clerk to pay money from the registry to cover the cost of appointed counsel--are administrative in nature, and therefore not reviewable. The one exception to the rule, however, is that the Court may review district court orders under § 3006A(f) to ensure that the district court complied with the procedural requirements of § 3006A(f).
Three of the four grounds raised on appeal concerned the exception, and were thus reviewable--(1) the district court lacked the authority to raise sua sponte the question of whether a portion of the fees paid to the law firm were available to the defendants for purposes of the CJA; (2) the district court failed to perform an appropriate inquiry into whether the funds were available to the law firm before compelling payment of funds into the court's registry; and (3) the district court improperly required the law firm to pay funds into the court's registry before any appointed counsel had submitted a payment voucher. The Court held that it lacked jurisdiction to review the fourth ground--that the district court erred in finding that a portion of the funds were available to the defendants--and dismissed that ground.
As to the three reviewable grounds, the Court discerned no error, and affirmed the district court.
In United States v. Riley, No. 19-14013 (Apr. 28, 2021) (Grant, Tjoflat, Ed Carnes), the Court affirmed a 70-month sentence imposed for a violation of 18 U.S.C. § 922(g)(1), where the guidelines range was 12–18 months.
At sentencing, defendant stipulated that he had possessed a stolen firearm as a felon in pending charges in Mississippi. He also had pending state charges concerning an alleged sale of methamphetamine, which he contested. He requested a sentence within the guidelines range, which the government joined. The district court, however, was "greatly concerned" with the defendant's criminal history, and imposed a sentence of 70 months' imprisonment, which was 52 months above the top-end of the guidelines range. The district court found an upward variance to be appropriate after considering the defendant's "nature and circumstances" and his "history and characteristics." The district court also specified that the sentence would run consecutively to any other state sentences. It rejected defendant's request that the sentence begin running that day, while he was already in state custody, because the basis for the sentence as "totally different conduct." Defendant objected to the approximately 300 percent upward variance.
On appeal, defendant argued that the district court abused its discretion by imposing too much of an upward variance. He argued that the district court erroneously focused almost exclusively on his criminal history.
This Court disagreed, and found the defendant's sentence to be reasonable. It reaffirmed the broad discretion afforded district courts at sentencing, and noted that certain characteristics of criminal history are especially significant. The Court also noted that "[v]iolent offenders are often good candidates for upward variances," citing to research from the U.S. Sentencing Commission. The Court noted the "stack of other convictions" the defendant had "racked up" before the instant conviction.
In In re: Wild, Case No. 19-13843 (Apr. 15, 2021) (en banc), the Court once again denied a petition for mandamus brought by victims of Jeffrey Epstein.
The Court held, reluctantly, that the rights of victims under the Crime Victims’ Rights Act ("CVRA") of 2004, including the right to confer with prosecutors and be treated fairly, do not attach until federal criminal proceedings are initiated. Here, there was no federal criminal proceeding brought. So, despite evidence of a secret non-prosecution agreement between the government and Epstein, the victims’ statutory rights were never triggered. The majority expressed its "profoundest sympathy" for the victims, but felt compelled to hold that the CVRA does not authorize a victim to seek judicial enforcement of her CVRA rights in a freestanding civil action.
Chief Judge William Pryor, joined by Judges Newsom, Lagoa, and Tjoflat, filed a concurring opinion, to respond to three "fundamental errors" in the dissenting opinion. First, that the Court is not in the business of issuing advisory opinions. Second, that statutes must be read as a whole; not as individual subsections in isolation. And, third, that statutes are interpreted with a presumption against implied rights of action.
Judge Newsom filed a separate concurring opinion, underscoring how "sick" he felt at the result, but that it was the result the law required.
Judge Tjoflat, joined by Chief Judge William Pryor and Judges Wilson, Newsom, and Lagoa, filed a separate concurring opinion. He wrote separately to elaborate on the "untoward effects a pre-charge CVRA model would have on the fairness of our courts and on the separation of powers." Such a model would "impermissibly drag federal courts into the business of prosecution."
Judge Branch, joined by Judges Martin, Jill Pryor, and Hull, dissented. They argued that: (1) the plain text of the CVRA grants crime victims two "pre-charge" rights--the "reasonable right to confer with the attorney for the Government" and the "right to be treated with fairness"; (2) the CVRA provides crime victims with the statutory private remedy of judicial enforcement of those rights "if no prosecution is underway" by filing a motion for relief "in the district court in which the crime occurred."
Judge Hull filed a separate dissent. She joined Judge Branch's dissent in full, but wrote separately to discuss: (1) the majority skipped over the first en banc issue; (2) as to that first issue, under the plain language of the CVRA, victims have reasonable rights to confer with prosecutors and those rights attach pre-charge; (3) how the majority misapplied the Sandoval case;(4) the amicus brief submitted by three U.S. Senators in support of the proposition that the CVRA's plain text does not condition a victim's rights and remedy upon a preexisting indictment; and (5) the far-reaching consequences of the Majority's holding.
Wednesday, April 21, 2021
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
Tuesday, April 06, 2021
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.