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

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

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

Fleury: Upholding Interstate Threats/Cyberstalking Convictions Over Various Challenges

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

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

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

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

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

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

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

 

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

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