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.