Eleventh Circuit Court of Appeals - Published Opinions

Thursday, May 13, 2021

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

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

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

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

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

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

Friday, May 07, 2021

Bryant: USSG 1B1.13 Remains an "Applicable Policy Statement" Limiting Compassionate Release

In United States v. Bryant, No. 19-14267 (May 7, 2021) (Brasher, Luck, Martin), the Court affirmed the denial of compassionate release.

Breaking with the seven other circuits to address the issue, the Court held that USSG 1B1.13 remains an “applicable policy statement,” and thus constrains courts considering a defendant-filed 3582(c)(1)(A) motions.  The Court also held that Application Note 1(D)—a catchall provision for defining “extraordinary and compelling” circumstances—applies only to BOP-filed motions, and so defendant-filed motions must therefore satisfy one of the other criteria in Application Note 1(A)-(C).

Judge Martin dissented in a 20-page opinion, emphasizing that the majority limits inmates’ ability to seek compassionate release, prevents courts from conducting independent and individualized consideration, and revives the problem that the First Step Act was meant to resolve by leaving the determination in BOP’s control.

Thursday, May 06, 2021

Brown: En Banc Court Vacates Conviction For Dismissing Juror Guided by the Holy Spirit

In United States v. Brown, No. 17-15470 (May 6, 2017) (William Pryor, Newsom, Branch, Grant, Luck, Lagoa, and Brasher), the en banc Court vacated the defendant’s conviction.

The en banc majority held that the district court abused its discretion by dismissing a juror who said that the Holy Spirit told him that the defendant was not guilty, but then assured the court that he was following the instructions and basing his decision on the evidence at trial.  Because there was a “substantial possibility” that he was basing his decision on the evidence and the law, removing the juror violated the defendant’s Sixth Amendment right to a unanimous jury.

Judge Newsom, joined by Judge Grant, concurred, emphasizing that the juror’s Holy Spirit statement had to viewed in the context of the record and that the case wasn’t really about religion.

Judge Brasher, joined by Judge Branch, concurred, opining that there was no reason to inquire into the juror’s thoughts at all because his comment occurred at the outset of deliberations and the juror had committed no misconduct.

Judge Wilson, joined by Judges Martin, Jordan, and Rosenbaum (Jill Pryor was recused), dissented, emphasizing that the appellate court should not second guess the district court’s factual findings about the juror, which should be reviewed deferentially.

Judge Rosenbaum, joined by Judges Wilson and Martin, dissented, emphasizing that the majority’s reasoning would equally prevent, and thus deter, a judge from dismissing a juror who said that the Holy Spirit told him to convict.

Tuesday, May 04, 2021

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

In Foster v. United States, No. 19-14771 (May 4, 2021) (Jordan, Marcus, Ginsburg), the Court affirmed the district court's denial of Foster's Davis-based, multiple-predicate § 2255 motion.

This case involves a reverse sting operation wherein Foster was charged with conspiring with others to commit armed robbery of a house he believed held a Colombian cartel's drug stash.  Foster was charged with: (1) conspiracy to commit Hobbs Act robbery; (2) conspiracy to possess with intent to distribute at least 5 kg 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 the crimes alleged in Counts 1, 2, and 3; (5) using and carrying a firearm during and in relation to the crime alleged in Counts 1, 2, and 3; and (6) possessing a firearm as a convicted felon.  At trial, the jury was instructed that it could find Foster guilty of Counts 4 and 5 if it found he carried or possessed a firearm to commit the crimes charged in Count 1 or Counts 2 or 3.  As to Count 5, the court instructed the jury that it had to unanimously agree upon the way in which Foster committed the violation.  No such unanimity instruction was given with respect to Count 4.  The jury returned a general verdict finding Foster guilty on all six counts.  After the Supreme Court's opinion in Davis, Foster was granted leave to file a second or successive § 2255 motion, which the district court denied.         

On appeal, the Court first addressed the government's procedural default argument, raised for the first time on appeal.  The Court found, "[u]nder the peculiar circumstances of this case," that the government waived the affirmative defense of procedural default.  

Moving on to the merits of Foster's claim, the Court held that he could not prevail because the Hobbs Act conspiracy was inextricably intertwined with the conspiracy and attempt to possess with intent to distribute cocaine.  Any inclusion of an invalid predicate offense in the indictment and jury instructions was harmless.  In so holding, the Court heavily relied on its previous opinion in Granda v. United States, 990 F.3d 1272 (11th Cir. 2021).      


Monday, May 03, 2021

Jackson: Denying Rehearing En Banc

In United States v. Jackson, No. 19-11955 (May 3, 2021) (denying relief under the First Step Act because the quantity of drugs involved in defendant's 1999 offense would have still triggered a mandatory minimum under the Fair Sentencing Act of 2010), the Eleventh Circuit denied rehearing en banc.  

Chief Judge William Pryor, joined by Judge Grant, wrote separately in support of the Court's decision to deny rehearing en banc.  More specifically, he wrote to respond to the dissent's arguments that the panel misread section 404(b) of the First Step Act.  Chief Judge Pryor clarified that section 404(b) contains two implicit limits on the availability of relief: (1) the district court may not grant a reduction if the trafficker already received the lowest statutory penalty that would be available to him under the Fair Sentencing Act; and (2) the district court is bound by a previous finding of drug quantity that was used to determine the trafficker's statutory penalty at the time of sentencing.  He believes the dissent reads these limits out of section 404(b), and in so doing, commits three errors of statutory interpretation--(1) it selectively fails to consider what the text of the First Step Act fairly implies;(2) it neglects to read section 404 in the light of the statutory scheme; and (3) it focuses on the general purpose of the First Step Act to the exclusion of its specific text.

Judge Martin, joined by Judge Rosenbaum, dissented from the denial of rehearing en banc.  They argue that by attributing a drug amount to the defendant that was neither found by a jury nor charged in his indictment, the panel created a limit on First Step Act relief found nowhere in the text of the statute.  As a result, the reach of the First Step Act has been curtailed in the Eleventh Circuit, creating a troubling disparity between defendants sentenced before and after Apprendi v. New Jersey, 530 U.S. 466 (2000).