Eleventh Circuit Court of Appeals - Published Opinions

Friday, May 27, 2022

Gardner: "Maximum Term of Imprisonment" for ACCA "Serious Drug Offense" is Defined by Statutory Maximum, not High end of Presumptive Guideline Range

In United States v. Gardner, No. 20-13645 (May 27, 2022) (Newsom, Tjoflat, Hull), the Court affirmed the defendant’s ACCA sentence.

The district court applied the ACCA based prior Alabama drug convictions.  The defendant argued that his convictions did not qualify as “serious drug offenses” because they did not have a “maximum term of imprisonment” of ten years or more.  The Court held that the “maximum term of imprisonment” was determined by the statutory maximum under state law.  The Court rejected the defendant’s argument that it was instead determined by the high-end of the state’s presumptive guideline range.

Monday, May 23, 2022

Jimenez-Shilon: 9225(g)(5)(A), prohibiting illegal aliens from possessing guns, does not violate Second Amendment

In United States v. Jimenez-Shilon, No. 20-13139 (May 23, 2022) (Newsom, Branch, Brasher), the Court held that 18 U.S.C. 922(g)(5)(A)—which prohibits illegal aliens from possessing firearms—does not violate the Second Amendment.

The Court held that illegal aliens do not have Second Amendment rights.  The Court assumed, for the sake of argument, that the defendant here was among the “people” referenced in the Constitution.  Nonetheless, after conducting an extensive historical analysis, the Court concluded that illegal aliens were not afforded the right to bear arms in England or colonial America.  In so concluding, the Court joined seven circuits to address the issue, which all reached the same conclusion.  Accordingly, the Court held that 922(g)(5)(A) does not violate the Second Amendment.

Judge Newsom authored a separate 10-page concurrence about his views more generally on how to conduct a Second Amendment analysis in future cases.

Tuesday, May 17, 2022

Coglianese: Upholding Supervised Release Restriction on Computers and Electronic Data Storage Medium in Child Sex Case

In United States v. Coglianese, No. 20-12074 (May 17, 2022) (William Pryor, Jordan, Brown (N.D. Ga.)), the Court affirmed the defendant’s low-end 168-month for child sex crimes.

After upholding the procedural and substantive reasonableness of the sentence, the court upheld a special condition of supervision restricting the defendant from accessing computers and the internet, and from possessing any electronic data storage medium, without prior approval by probation.  The Court had uniformly upheld computer restrictions in sex offender cases where, as here, the defendant could seek permission from probation, including in decisions issued after the advent of smartphones.  The defendant argued that the restriction on an “electronic data storage medium” was overbroad and included everyday items like a modern television and alarm system, but the Court concluded that the ordinary meaning of the phrase referred to a flash drive and other devices that can store and transmit information for processing by a computer.  It was therefore tailored to the defendant’s offense and neither overbroad nor an abuse of discretion.

Thursday, May 12, 2022

Rodriguez: Affirming Sentence for Trafficking 200kg of Meth

In United States v. Rodriguez, No. 20-14681 (May 12, 2022) (Jill Pryor, Grant, Marcus), the Court affirmed the defendant’s 135-month sentence for his role in a conspiracy trafficking methamphetamine.

First, the Court upheld the district court’s decision to attribute 200 kilograms of meth to Rodriguez after considering the scope of the enterprise, his particular role, and the quantity of drugs that would be reasonably foreseeable in light of his role.  This case involved a large importation/distribution enterprise driving drugs across the Mexico border for distribution, and then wiring money back to the cartels in Mexico.  Rodriguez acted jointly with his co-conspirators and participated in the conspiracy in six different ways, five of which included directly transporting drugs.  And, even though he played a “minor role” in the conspiracy, that did not preclude attributing the full quantity of drugs to him where that quantity was reasonably foreseeable.

Second, the Court upheld an enhancement for possession of a firearm because his co-conspirator had stored a firearm at the stash house, and that was reasonably foreseeable, as Rodriguez effectively admitted at sentencing.

Third, the Court lacked jurisdiction to consider the argument that the district court erroneously failed to grant a downward departure under the Guidelines.  Appellate review is available only where the district court incorrectly believed that it lacked authority to grant the departure, and nothing in the record suggested that the district court harbored such a misunderstanding.

Finally, the Court concluded that the low-end sentence was not substantively unreasonable.  Nor did the district court abuse its discretion in declining to impose a downward variance.

Tuesday, May 10, 2022

Moon: Sixth Amendment Structural Right to a Public Trial is Waivable

In United States v. Moon, No. 20-13822 (May 10, 2022) (Jill Pryor, Branch, Hull), the Court affirmed the defendant’s child pornography convictions.

First, the Court upheld the denial of a motion to suppress videotapes found during the execution of an unrelated search warrant on the defendant’s medical office.  The Court concluded that the search was within the scope of the warrant because it referred to “videotapes” and “tapes.”  Thus, the officer was entitled to briefly examine the tapes, as that was the only way to determine their relevance to the crime.  The Court rejected the defendant’s argument that the videotapes were too obsolete to contain criminal evidence, as the office contained a VCR as well as a hidden surveillance camera.

Second, the Court upheld the district court’s closures of the courtroom to display sensitive evidence.  The Court found that the parties entered into a pre-trial agreement to do so.  The Court joined other circuits in holding that the structural right to a public trial is waivable.  And the Court concluded that the defendant waived that right by entering the pre-trial agreement, affirmatively consenting to the closure at various points early in the trial, and subsequently failing to object to any later closures that purportedly exceeded the scope of the agreement.

Finally, the Court briefly found no abuse of discretion in the district court’s: denial of a motion for a Franks hearing; denial of a motion for recusal; and failure to give several requested instruction on the definition of “lascivious exhibition.”

Friday, May 06, 2022

Seabrooks: Reversing Denial of 2255 Motion Based on Rehaif

In Seabrooks v. United States, No. 20-13459 (May 6, 2022) (Wilson, Rosenbaum, Conway (MD Fla.)) (per curiam), the Court reversed the denial of a 2255 motion based on Rehaif, vacated the felon-in-possession conviction, and remanded for further proceedings.

The Court issued three holdings.  First, it agreed with the parties that Rehaif announced a  new “substantive” rule, and so it applied retroactively in initial 2255 motions.  Second, it held that Seabrooks’ Rehaif claim was not “procedurally barred” by his failure to raise that claim on direct appeal, since Rehaif was an intervening change in law.  And the government waived any argument about “procedural default” by failing to raise that defense in the district court.  Third, the Court held that the district court’s aiding and abetting instruction, which was erroneous in light of Rosemond and Rehaif, was not harmless because there was more than a reasonable probability that the jury relied on that theory to convict.

Thursday, April 28, 2022

Clark: Affirming Drug and Firearm Convictions

In United States v. Clark, No. 20-10672 (Apr. 28, 2022) (Jordan, Jill Pryor, Tjoflat), the Court affirmed Mr. Clark's convictions and sentence.  

Mr. Clark was convicted of possessing a firearm as a convicted felon, possessing methamphetamine with intent to distribute, and possessing a firearm in furtherance of a drug trafficking crime.  After a jury trial, he was sentenced to 360 months' imprisonment.  

Mr. Clark raised five issues on appeal.  First, he argued that the district court abused its discretion in denying his motion for a new trial based on the government's post-trial disclosure of Brady material about a Bureau of Alcohol, Tobacco, Firearms and Explosives special agent who had been internally disciplined for destroying evidence in a previous case involving an individual charged with distributing narcotics and being a felon in possession of a firearm (as a result of this agent's misconduct, one of the United States Attorney's Offices refused to accept future cases from him).  At Mr. Clark's trial, this special agent testified as an expert witness about the interstate nexus and gun identification.  The Court found no abuse of discretion because Mr. Clark received a fair trial with a "verdict worthy of confidence," even without the disclosure of Brady material.     

Second, Mr. Clark argued that the district court erred in denying his motion  to suppress the evidence seized as a result of a traffic stop and subsequent arrest.  Mr. Clark maintained that officers did not have reasonable suspicion or probable cause for a traffic stop in the first place, and no probable cause to search his car.  The officer who pulled over Mr. Clark consistently testified that he did so because Mr. Clark's car was weaving in and out of lanes, but he could not remember the details.  The Court noted that officers need not have perfect memory as to why they stopped an individual in order for probable cause to be found.  Additionally, the Court also found that officers had probable cause to arrest Mr. Clark, and, therefore, search him and his car incident to arrest.  

Third, Mr. Clark argued that the district court failed to specifically instruct the jury to apply the beyond-a-reasonable-doubt standard to the special verdict question of weight of methamphetamines discovered.  If the jury found that the weight was above 5 grams, that finding would raise the mandatory minimum to 5 years and the statutory maximum to 40 years.  Reviewing for plain error, the Court found that the district court erred, but found itself "powerless" to correct the error because Mr. Clark invited the error by affirmatively accepting the special verdict question.  The Court also noted that such an error--an Alleyne error--is not structural error, and noted that even if it were structural, the law is mixed on how a structural error interacts with the invited-error doctrine.  

Fourth, Mr. Clark argued that the district court abused its discretion when it admitted evidence of all eight of Mr. Clark's prior felony convictions, including a probation order that surveyed his lengthy arrest record, with regard to the felon-in-possession count.  He also argued that the records should have been redacted and that a limiting instruction should have been given.  The Court noted that since, post-Rehaif, the government must now prove that an individual knew he was a felon when he possessed the firearm, and Mr. Clark did not stipulate to his status as a convicted felon, the district court did not abuse its discretion in allowing the government to admit all eight convictions as to that element.  The Court refused to establish a brightline rule that would limit the number of convictions the government could introduce, noting that the number likely depended on the circumstances of each case.  The Court reviewed Mr. Clark's other contention--that the records should have been redacted and a limiting instruction given--for plain error, and found none.  The Court noted that though the arrest records had zero bearing on the knowledge element, the district court was under no affirmative obligation to sua sponte exclude them. 

Finally, Mr. Clark argued that the cumulative effect of the errors in his trial warranted reversal.  The Court disagreed.      

Monday, April 25, 2022

Thomas: Affirming Sentence

In United States v. Thomas, No. 19-11670 (Apr. 25, 2022) (Branch, Grant, Tjoflat), the Court affirmed Mr. Thomas's sentence.  

Mr. Thomas appealed his 120-month sentence for conspiracy to possess with intent to distribute 50 grams or more of actual methamphetamine and 1 kilogram or more of heroin.  He argued that the district court erred in (1) applying a two-level enhancement under U.S.S.G. § 2D1.1(b)(12), and (2) failing to apply the safety valve of U.S.S.G. § 5C1.2.   

With regard to § 2D1.1(b)(12), the PSI asserted that Mr. Thomas had maintained a stash house for the purpose of manufacturing or distributing a controlled substance.  In support, the PSI noted that Mr. Thomas had possessed a key to the drug trailer located in the backyard of the stash house.  Mr. Thomas argued that he did not own the stash house, did not reside there (though he did concede that he did live there for a small part of the conspiracy), and possessed a key only to the trailer, not the house.

The Court found application of a two-level enhancement under § 2D1.1(b)(12) appropriate because of Mr. Thomas's concession that he lived at the stash house for a good portion of the conspiracy.  As a result, the district court was entitled to assume he had unfettered access to and control over the premises.  That he moved out of the stash house at some point prior to police’s seizure of the drugs and firearms does not affect the analysis. The Court reasoned that Mr. Thomas did not need to maintain the premises for the purposes of distributing drugs for the entire conspiracy to be eligible for a sentencing enhancement under § 2D1.1(b)(12); he merely needed to do so for a portion of the conspiracy.       

As for safety valve, the Court first found that the district court erred when it concluded that the two-level firearm enhancement under § 2D1.1(b)(1) necessarily barred Mr. Thomas from safety valve relief.  The Court reaffirmed that a defendant who receives a firearm enhancement under § 2D1.1(b)(1) can still secure safety valve relief if he shows that it is more likely than not that the possession of the firearm was not in connection with the offense.  Nevertheless, Mr. Thomas was ineligible for safety valve relief because he failed to meet his burden of showing that he met each of the five safety-valve criteria.  More specifically, he could not satisfy § 5C1.2(a)(5) because he refused to provide the government with any of the information he had concerning the drug operation.     

Mosley: Vacating Sentence for Failing to Provide an Opportunity to Object

In United States v. Mosley, No. 20-11146 (Apr. 21, 2022) (William Pryor, Jordan, Brown (N.D. Ga.)) (per curiam), the Court vacated Mr. Mosley's sentence and remanded for further proceedings.  

Mr. Mosley pleaded guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2).  At sentencing, his advisory Guidelines' range was calculated to be 37 to 46 months' imprisonment.  Both his attorney and the government requested a sentence within the guideline range.  The district court, however, varied upwards to 87 months' imprisonment on account of Mr. Mosley's criminal activity and background.  Subsequently, in its Statement of Reasons, the district court stated it imposed the sentence, in part, because the weapon involved was stolen from the police department.  Mr. Mosley appealed, arguing that the district court erred in sentencing him based on that conclusion without first allowing him an opportunity to object.  

The Court agreed with Mr. Mosley.  It reaffirmed that under Jones, a district court must elicit fully articulated objections, following imposition of sentence, to the court's ultimate findings of fact and conclusions of law.  The district court here did not follow the Jones procedure.  No one mentioned that the firearm had been stolen from a police department at the sentencing hearing.  That fact was not set out in the PSI.  As such, because the district court first announced this conclusion after the sentencing hearing when it issued the written document, the district court did not provide Mosley an opportunity to object to its finding as to the victim of the theft.   

The Court noted, however, that its holding was narrow, and not an invitation for new Jones claims based on the Statement of Reasons.  It reaffirmed that a district court’s post-sentencing Statement of Reasons form is not typically a document a defendant may use to pursue a Jones violation.      

Stowers: Affirming Denial of Motion to Suppress Wiretap Evidence

In United States v. Stowers, No. 18-12569 (Apr. 20, 2022) (Jordan, Brasher, Anderson), the Court affirmed the district court's denial of the defendants' motions to suppress.

In this consolidated appeal, the Court answered several questions of first impression regarding Title III of the Omnibus Crime Control and Safe Streets Act, which regulates the interception of wire, oral, and electronic communications.  While investigating a suspected drug trafficking conspiracy, a Georgia Bureau of Investigation agent secured a wiretap authorization order from a state judge. The wiretap ultimately implicated the nine named defendants in the conspiracy.  When federal authorities prosecuted them based on this state-gathered evidence, the defendants asked the district court to suppress the evidence on three grounds: (1) the state judge did not correctly seal the wiretap recordings as required under Title III; (2) the government impermissibly delayed sealing the wiretap recordings without providing a satisfactory explanation for the delay; and (3) the state court's wiretap authorization order exceeded its jurisdiction.  

The order authorizing the wiretap contained the following language: “Let return hereof and report as required by law be made before me within forty (40) days of date hereof or ten (10) days from the date of the last interception, whichever is earlier.” The authorization also stated that all applications, affidavits, orders, reports, court reporter’s notes, tapes, and disks, “and all other matters filed or received herein shall remain sealed until further Order of this Court … [and] remain in the custody of the Clerk.”  Finally, each wiretap authorized the State to continue to monitor and electronically intercept transmissions to and from the target telephone during any out of state travels.  

As to the first ground, the Court held that nothing in the text of Title III requires that the judge issue a separate, written sealing order after receiving the recordings.  What occurred in this case--taking the original recordings to the judge, placing a seal on a tamper-proof evidence bag in front of the judge, initialing the bag along with the judge, and leaving the evidence bag in the possession of the court clerk--satisfies the statute's requirements for sealing.    

As to the second ground, the Court held that the government provided a "satisfactory explanation" for any delay in sealing.  As an initial matter, the Court noted, in line with its sister circuits, that the recordings were sealed immediately--in line with the statute's express language--because the statute puts judicial officers--not law enforcement--in charge of sealing wiretap recordings, and here, the agents met the authorizing judge's ten-day deadline.  But, even assuming the recordings were returned late, as both parties argued, the government provided a "satisfactory explanation" to excuse the delay.  In so holding, the Court found that the government had met two threshold requirements: that the recordings had not been tampered with, and that the government had acted in good faith.  The Court then found that the other factors also weighed in favor of finding the government's explanation "satisfactory."  More specifically, with regard to the third factor--whether the government's reasons for delaying were objectively reasonable--the Court held, in line with its sister circuits, that it was objectively reasonable for the officers to rely on the ten-day period in the authorizing court's order.  Law enforcement agents do not act unreasonably when they decline to doublecheck a judge’s wiretap order with their own independent legal research. Title III puts the court in charge of the process, not law enforcement. 

As to the third ground, the Court held that the state court did not exceed its jurisdiction in authorizing the interception of calls made outside of the state because under Georgia law, Georgia courts have the authority to issue wiretap warrants for the interception of calls if either the tapped phones or the listening post are located within Georgia.  Here, the listening post was in Georgia.  The Court noted that the safeguard on the scope of state court’s wiretap authority is the requirement that law enforcement establish probable cause for the intrusion, not a geographical limit on the phone calls that can be monitored.   

Judge Jordan wrote separately, concurring in part, and concurring in the judgment.  He agreed that the government explanation for the delay in sealing was "satisfactory," but for different reasons.  Because the interception orders at issue here were sought by a state law enforcement officer and issued by a state judge pursuant to Georgia law, Judge Jordan would have determined whether the government's explanation for the delay in sealing was satisfactory by reference to Georgia law as well as federal law.    


Tuesday, April 19, 2022

Smith: Reversing Denial of First Step Act Motion and Remanding

In United States v. Smith, No. 19-13056 (Apr. 19, 2022) (William Pryor, Jordan, Brown (N.D. Ga.)), the Court reversed the district court's denial of Mr. Smith's First Step Act motion and remanded for further proceedings.  

Mr. Smith was convicted of possession of 5 grams or more of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(b)(1)(B), and the brandishing of a firearm in the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).  He was sentenced to a term of imprisonment of 210 months on the crack cocaine conviction, and a consecutive term of imprisonment of 84 months on the firearm conviction.  Based on Amendments 706 and 782 to the Sentencing Guidelines, his sentence on the crack cocaine conviction was reduced to 168 months' imprisonment, and then to 135 months' imprisonment.  

After passage of the First Step Act, Mr. Smith wrote a letter to the district court asking whether he was eligible for a sentence reduction, and requesting the appointment of counsel to file a motion.  The district court appointed the Federal Public Defender's Office to represent Mr. Smith.  The probation office then prepared a memorandum advising the court that Mr. Smith was ineligible for a sentence reduction.  The district court then, without the benefit of briefing, construed Mr. Smith's pro se letter as a motion for relief under the First Step Act and denied it, concluding that Mr. Smith was not eligible for a reduction.  Mr. Smith moved for reconsideration, to which the government was ordered to respond and "includ[e] all substantive arguments."  The parties then filed a joint motion for reconsideration requesting a briefing schedule to allow litigation of all arguments for relief, which the court denied.  The court also denied Mr. Smith's request for leave to file a reply to the government's response to address the government's substantive arguments.  The court then denied Mr. Smith's motion for reconsideration, finding Mr. Smith ineligible for relief under the First Step Act, and alternatively, even if he were eligible, that any further reduction was unwarranted.

This Court reversed and remanded to afford Mr. Smith an opportunity to be heard as to why he merited a sentence reduction.  The Court first determined that, under Jones, Mr. Smith is eligible for relief.  The Court then addressed the district court's alternative ruling, and found that it could not stand because Mr. Smith was not given an opportunity to be heard on the issue.  The Court reasoned that although the district court provided reasons as to why Mr. Smith did not merit a sentence reduction, it rendered its alternative ruling without hearing from him and without considering the factual and legal bases that might support a favorable exercise of discretion. The wide berth given to district courts by the First Step Act requires deferential review with respect to the ultimate exercise of discretion, but it does not speak to the process which must be provided to the parties.        

Thursday, April 14, 2022

Hakim: Waiver of Right to Counsel was Not Knowing

In United States v. Hakim, No. 19-11970 (Apr. 14, 2022) (William Pryor, Grant, Anderson), the Court vacated Mr. Hakim's conviction and remanded for further proceedings.  

The Court addressed whether a defendant's waiver of his right to counsel is knowing when a court gives materially incorrect or misleading information to the defendant about his potential maximum sentence.  Here, Mr. Hakim was found guilty after a jury trial on three misdemeanor counts of willful failure to file a federal income tax return.  Although he was represented by counsel at trial, he was without counsel during the pretrial process.  At his arraignment, Mr. Hakim expressed his desire to waive his right to counsel and to represent himself.  The magistrate judge found that Mr. Hakim's waiver was knowing after misinforming him that the maximum sentence he could receive if convicted was 12 months imprisonment.  After trial, Mr. Hakim was sentenced to 21 months of imprisonment.  On appeal, Mr. Hakim argued that his waiver of counsel was not knowing. 

As an initial matter, the Court first clarified that the applicable standard of review on appeal was de novo--and not plain error--where a pro se defendant failed to contemporaneously object to the validity of his own waiver.  It then agreed with Mr. Hakim, holding that because Mr. Hakim had received incorrect information about the possible punishment he faced, there was no knowing and intelligent waiver of his right to counsel.  Here, the magistrate judge not only failed to inform Mr. Hakim of the maximum sentence, but he misled Mr. Hakim by incorrectly representing that the maximum term of imprisonment would be one year, when it was instead three year.  The government bore the burden of showing that there was other evidence in the record to support that Mr. Hakim knew the correct range from another source in order to establish that the waiver was knowing, but it could not meet its burden.  

Additionally, Mr. Hakim did not need to show prejudice to obtain a reversal because the constitutional error was structural.  That is, he was deprived of his constitutional right to counsel at a critical stage.

Judge Grant dissented.  She would have reviewed for plain error and upheld Mr. Hakim's conviction.  She distinguished Mr. Hakim's case from those in other circuits that have applied de novo review, because he proceeded to trial and sentencing with counsel.    


Wednesday, April 13, 2022

Woodson: Interview Not Custodial, No Miranda Warning Required

In United States v. Woodson, No. 20-10443 (Apr. 13, 2022) (Branch, Grant, Brasher), the Court affirmed Mr. Woodson's convictions and sentence.  

Mr. Woodson was charged with offenses relating to child pornography and extortionate interstate communications.  A jury found him guilty on all counts, and he was sentenced to 50 years' imprisonment followed by a life term of supervised release.  

On appeal, he first challenged the district court's denial of his motion to suppress statements he made to police without the benefit of Miranda warnings.  Approximately 15 officers arrived at the home Mr. Woodson shared with his family, including his brother Brandon, to execute a search warrant.  Mr. Woodson was asleep when the officers entered his bedroom, handcuffed him, and escorted him to the living room, where he joined his family.  Officers then interviewed Brandon outside of the home, inside a parked police van.  They determined that he was unlikely to be the culprit.  Mr. Woodson agreed to talk with officers next.  He was uncuffed and followed officers to the same parked police van.  He sat in the front passenger seat, with one detective in the driver's seat and another detective in the back seat.  Mr. Woodson was advised that he was not under arrest, that he was not charged with a crime, and that they were talking voluntarily.  He was not, however, read the Miranda warnings.  Mr. Woodson eventually confessed to the crimes alleged, and after less than an hour, the discussion concluded, and he was escorted back inside the home.  He was not arrested until nearly eight months later.  

Mr. Woodson argued that his statements should have been suppressed because his discussion with law enforcement had been a custodial interrogation that required Miranda warnings.  The Court disagreed.  The Court first clarified that the determination of custody under Miranda depends entirely on the objective circumstances of the interrogation, which are assessed from the perspective of the reasonable innocent person.  As such, the Court found the lower court's reliance on the subjective beliefs of Brandon regarding his interactions with law enforcement to be erroneous.  Because the custody test is objective, courts do not consider subjective beliefs, even those of others who are interrogated.  The Court then concluded that a reasonable person in Mr. Woodson's position would have felt free to terminate the interview and leave, though it recognized that "the question may be close here."  In support, the Court noted that Mr. Woodson was advised he was not under arrest, not charged with a crime, and that his conversation was voluntary; he was not handcuffed and sat in the front passenger seat of the police van.    

Additionally, even if a reasonable person in Mr. Woodson's position would not have felt free to terminate the interview and leave, the interview environment did not present the serious danger of coercion that a custodial interview entails.  First, any display of police control and authority that occurred earlier when officers executed the search warrant was irrelevant to the determination of whether the subsequent interview was custodial.  Additionally, Mr. Woodson was not whisked away to the police station, but instead remained outside his home, in clear view of his neighbors.  Finally, he was not entirely cut off from his normal life--he quickly returned to it.  That officers threatened to expose Mr. Woodson to his boss if he lied to them and the hour-long duration of the interview did not tip the scale in Mr. Woodson's favor.    

Mr. Woodson also challenged his sentence on procedural and substantive grounds, which the Court rejected.    

Judge Brasher filed a concurrence, noting that, in his view, the lower court did not err in considering the testimony of Brandon as part of the totality of circumstances of the Miranda custody determination.  This is so because he was neither the suspect nor the police; rather he was an innocent third-party who testified about his impression of the scene.             

Tuesday, April 12, 2022

Moss: Affirming Health Care Fraud Convictions, Sentence, and Restitution Amount

In United States v. Moss, No. 19-14548 (Apr. 12, 2022) (William Pryor, Luck, Ed Carnes), the Court affirmed Mr. Moss's convictions, sentence, and restitution amount.  

Mr. Moss was charged with one count of conspiracy to commit health care fraud, in violation of 18 U.S.C. §  1349, and six counts of health care fraud, in violation of 18 U.S.C. §  1347.  After a jury trial, he was convicted of all counts.  He was sentenced to 97 months imprisonment, ordered to forfeit $2,507,623, and to pay $2,256,861 in restitution.  He appealed his convictions and sentence, as well as the restitution and forfeiture amounts.  

Mr. Moss raised three challenges to his convictions, which the Court found to be without any merit.  

As for his sentence, Mr. Moss challenged the loss amount used to determine his sentence, the dollar amount he had to pay in restitution, and the forfeiture amount.  The Court found no clear error in the district court's determinations.  With regard to the forfeiture determination, the Court found that forfeiture ordered under 18 U.S.C. §  982(a)(7)--"forfeit property, real or personal, that constitutes or is derived, directly or indirectly, from gross proceeds traceable to the commission of the offense"--encompasses the proceeds Mr. Moss received for providing legitimate services.  In so holding, the Court applied a "but for" test, asking, but for his Medicare fraud, would Mr. Moss have been entitled to collect proceeds for his legitimate services? The Court held no.        

Tuesday, April 05, 2022

Sanchez: Upholding Convictions and Sentence of Life Plus Ten

In United States v. Sanchez, No. 19-14002 (Apr. 5, 2022) (Branch, Grant, Ed Carnes), the Court affirmed Mr. Sanchez's convictions and sentence. 

Mr. Sanchez was charged with two counts of enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b); two counts of enticing a minor to engage in sexually explicit conduct in order to produce child pornography, in violation of 18 U.S.C. § 2251(a); two counts of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B); and one count of having committed a felony offense involving a minor while already a registered sex offender, in violation of 18 U.S.C. § 2260A.  He was found guilty after trial of all counts and sentenced to life imprisonment plus a consecutive ten-year mandatory minimum.  

Mr. Sanchez appealed the district court's denial of his motion to suppress.  More specifically, whether the district court erred by not excluding evidence derived from the officer's brief, warrantless entry into Mr. Sanchez's home for the sole purpose of seizing a phone for which the officers had obtained a search warrant.  Officers arrived at Mr. Sanchez's home, which he shared with his parents, with a warrant to seize his phone.  They encountered Mr. Sanchez out on his driveway.  He did not have his cellphone on his body; it was inside the home, in his bedroom.  Officers testified that they obtained consent from Mr. Sanchez's mother to enter the home with her to retrieve the cellphone.  Mr. Sanchez challenged the officers' contention that they obtained his mother's consent to enter the home because the officers could not remember exactly how the mother consented--verbally, nonverbally, etc.  

The Court found that Mr. Sanchez consented to the seizure of his phone, that his mother gave officers at least nonverbal consent to follow her into the home to retrieve the phone, and that their consent was voluntarily given--there was no show of force causing either of them to acquiesce to a show of authority, nor was the search conducted in the middle of the night.  Additionally, consent can be nonverbal.  Likewise, silently accepting an officer's expressed intent to enter the house solely for the purpose of retrieving the phone is also valid consent.     

Mr. Sanchez also challenged his sentence.  First, he argued that his previous conviction under Article 120 of the Uniform Code of Military Justice for indecent conduct should not be a qualifying offense under 18 U.S.C. § 2251(e), which triggered a 25-year mandatory minimum sentence of imprisonment.  The Court rejected this argument because the plain language of § 2251(e) requires the application of a 25-year mandatory minimum sentence if a defendant has a prior conviction under Article 120.    

Mr. Sanchez next challenged four guidelines sentencing enhancements--a 4-level increase under U.S.S.G.  § 2G2.1(b)(4); a 2-level increase under  § 2G2.1(b)(2)(A); a 5-level increase under § 4B1.5(b)(1); and a 2-level increase under § 2G2.1(b)(3).  As to the first three, the Court found no error in their application.  As to the fourth--a 2-level increase under § 2G2.1(b)(3) for knowingly engaging in the distribution of child pornography--the Court reasoned that even if Mr. Sanchez was correct that his solicitation of child pornography is not distribution, any error was harmless because his total offense level would have remained the same.   

The Court also rejected Mr. Sanchez's contention that his rights under the Double Jeopardy Clause were violated because he was sentenced for violating both 18 U.S.C. § 2251 and § 2422 based on his criminal conduct of enticing two minors to produce child pornography.  The Court held that because the two statutes do not have the same elements, there is no double jeopardy issue.  

Finally, the Court rejected Mr. Sanchez's challenge to the substantive reasonableness of his sentence.    

Wednesday, March 30, 2022

Williams: Defendant Forfeited Issue on Appeal re: Whether the Denial of Right to Self-Representation Automatically Renders Guilty Plea Involuntary

In United States v. Williams, Case No. 18-13890 (Mar. 30, 2022) (Jordan, Jill Pryor, Tjoflat), the Court affirmed the district court because it found that Mr. Williams had forfeited any arguments under which the Court could grant relief on appeal.  

Mr. Williams, a sovereign citizen, wanted to represent himself before the district court.  The district court held a Faretta hearing and denied Mr. Williams's request.  Mr. Williams subsequently pleaded guilty, with the assistance of counsel, and was sentenced to 151 months imprisonment.  

Mr. Williams was then assigned a new attorney on appeal.  This attorney moved to withdraw as counsel pursuant to Anders v. California, which the Court denied two times, finding at least two issues of arguable merit: (1) whether, despite later pleading guilty, the Court has discretion to review the denial of a defendant's request to proceed pro se, which is a potential structural error and, if so, (2) whether the district court erred in denying Williams's request to proceed pro se because it believed that he did not understand the risks of proceeding pro se due to his illogical legal theories.  The appellate brief failed to meaningfully address whether the guilty plea precluded the Court from addressing the Faretta issue.  As to that issue, the government noted a circuit split, with the 9th Circuit holding that an improper denial of a defendant's request for self-representation renders any subsequent guilty plea per se involuntary, thereby voiding it; and the 4th, 7th, 8th, and 10th Circuits holding that an improper denial of the right to self-representation does not render a subsequent guilty plea involuntary, so the subsequent guilty plea waives the right to appeal the improper denial.      

The Court noted that though the improper denial of the right to self-representation is structural error--which would have required reversal--it could not reach that issue because Mr. Williams's appellate counsel had failed to address the preliminary issue of what effect Mr. Williams's guilty plea had on his ability to raise that challenge.  That is, appellate counsel's failure to raise a challenge to the voluntariness of Mr. Williams's guilty plea in his initial brief forfeited the issue on appeal.  And, as a result, the Court found that it could not address the circuit split, nor the merits of the Faretta claim.  

The Court noted that, while under Campbell, it had the discretion to revive a forfeited issue, it was choosing not to here: "Even assuming that we have the discretion to revive the forfeited issue here, we cannot say that it would be appropriate to exercise our discretion and so decline to raise the voluntariness issue sua sponte."  

Thursday, March 24, 2022

Said: Violation of Fla. Stat. 893.13(6)(a) Overbroad With Regard to Controlled Substance Definition

In Said v. U.S. Att'y Gen., 21-12917 (Mar. 24, 2022) (Jordan, Newsom, Tjoflat), the Court held that a violation of Fla. Stat. § 893.13(6)(a)--the Florida marijuana possession statute--did not relate to a controlled substance, as defined in 21 U.S.C. § 802, and thus did not prevent Mr. Said from accruing the necessary seven-year period of continuous residence for his application for cancellation of removal.  As such, the Court found that the BIA and IJ erred in finding that Said was ineligible for cancellation of removal.    

The Court reasoned that by the plain language of Fla. Stat. § 893.02(3), not all substances that it proscribes are federally controlled.  Section 893.02(3) includes “all parts” of the marijuana plant, while federal law does not.  For instance, federal law does not include the mature stalks of the marijuana plant or fiber produced from such stalks.  21 U.S.C. § 802(16).  This is a significant divergence, and on its own, is sufficient to establish a realistic probability of broader prosecution under Florida law.  The Court distinguished its opinion from Chamu, where petitioner presented a hypothetical form of cocaine covered by state, but not federal law, to attempt to establish overbreadth.  Here, because the stalks of the marijuana plant do exist, it cannot be argued that Florida law just uses different terminology to describe the same substance proscribed by federal law.  The Court declined to ignore the statutory text and construct a narrower statute than the plain language supports.  

Monday, March 21, 2022

Lee: 18 U.S.C. 2251(a) and 2251(d) are Separate Offenses for Double Jeopardy

In United States v. Lee, 20-13505 (Mar. 21, 2022) (Lagoa, Brasher, Tjoflat), the Court affirmed the defendant’s conviction under 18 U.S.C. 2251(a) over a double jeopardy challenge.

The defendant sent text messages to a minor requesting sexually explicit images.  The defendant was originally charged with violating 2251(d), and a jury convicted him.  Shortly thereafter, however, the Eleventh Circuit in Caniff clarified that such conduct does not violate 2251(d), and the district court granted a judgment of acquittal.  Based on the same conduct, the government brought a new indictment, charging the defendant with violating 2251(a), and the defendant moved to dismiss on double jeopardy grounds.  The Eleventh Circuit held that the district court correctly denied the motion because 2251(a) and 2251(d) are distinct offenses with different elements.  2251(d) requires proof that the defendant made a notice or advertisement involving a sexually explicit depiction of a minor, whereas 2251(a) requires proof that the defendant arranged for a minor to engage in sexually explicit conduct for the purpose of creating a depiction of that conduct.  Because there were scenarios where a defendant could violate 2251(d) but not 2251(a), and vice versa, they were not the same offense for double jeopardy purposes.

Tuesday, March 08, 2022

Howard: Affirming Convictions in Tricare Kickback Case, But Reversing Sentence as Too Lenient

In United States v. Howard, Case No. 18-11602 (Mar. 7, 2022) (Branch, Luck, Ed Carnes), the Court affirmed in part, and vacated and remanded in part, a case involving Tricare, a government program that provides health care insurance benefits for active and retired members of the military and their families.  

This case involved the actions of Nicole Bramwell, a physician, Larry Howard, a pharmacist, and Raymond Stone, a retired Navy veteran.  They were convicted of crimes involving the millions of dollars Tricare paid Howard for filling compounded cream prescriptions for patients.  Bramwell wrote the prescriptions and Stone helped to recruit patients.  All three were convicted for paying or receiving kickbacks and conspiring to do so, in violation of 18 U.S.C. § 371, 42 U.S.C. § 1320a-7b(b)(1)(A), and 42 U.S.C. § 1320a-7b(b)(2)(A).  Howard was also convicted of laundering some of the proceeds, in violation of 18 U.S.C. § 1957.  Howard was sentenced to 160 months in prison; Stone to 24 months in prison; and Bramwell to 36 months of probation, with one year to be served in home detention.  

All three challenge their convictions based on the sufficiency of the evidence.  Howard also contends that the government constructively amended his indictment.  The government cross-appealed, contending that Bramwell's sentence was unreasonably lenient.  

As to the sufficiency of the evidence challenges, the Court first noted that it did not matter whether the prescriptions involved were legitimate or medically necessary or good or bad for the patients, because the substantive kickback convictions were based entirely on whether there were kickbacks paid.  Additionally, the conspiracy convictions could be sustained based solely upon evidence sufficient to support the kickback conspiracy without regard to any evidence of fraud.  The Court also reaffirmed that in a case alleging multiple objects of the conspiracy, only one of those objects needs to be proven to support the conspiracy conviction.  With that in mind, the Court found the evidence sufficient to support all convictions.   

As to the constructive amendment argument, Count 4 charged Howard with paying one $5000 kickback to Bramwell on a specific date, but the government presented evidence that he wrote two different $5000 checks to her on that date.  Howard argued that the evidence presented at trial constructively amended the indictment.  The Court disagreed.  Evidence that there were two $5000 checks did not alter the essential elements of the offense charged because the amount of the kickback paid was not an element of the offense.  

As to the government's cross-appeal of Bramwell's sentence of probation, the Court agreed with the government that the sentence was substantively unreasonable.  The PSI calculated an advisory Guidelines' range of 78 to 97 months imprisonment for Bramwell.  But at sentencing, the district court characterized Bramwell as something of a victim of Howard, and after extensively considering the § 3553 factors, varied downwards to zero months imprisonment.  In reversing the district court, the Court found that the district court had abused its discretion in three ways--failing to afford consideration to relevant factors (seriousness of the offense, the need to promote respect for the law, the need to provide just punishment for the offense, and general deterrence); giving significant weight to an improper factor (loss of professional license, convicted felon status, and the temptation and opportunity to commit the crime); and committing a clear error of judgment in considering proper factors and the weight they were due.  The Court did not find the district court's explanation for its variance sufficiently compelling to support the degree of variance.  As such, the Court vacated and remanded the part of the judgment involving Bramwell's sentence to the district court for further proceedings, with instructions that a sentence of probation is unreasonable.       

Friday, February 18, 2022

Dupree: Granting Rehearing En Banc

In United States v. Dupree, Case No. 19-13776 (Feb. 18, 2022), the Court agreed to rehear Mr. Dupree's appeal en banc, vacating the panel's prior unpublished opinion.  The panel, in affirming Mr. Dupree's sentence, found itself bound by the Court's opinion in United States v. Weir, 51 F.3d 1031 (11th Cir. 1995).    

The issue raised concerns whether a conviction under 21 U.S.C. § 846 (conspiracy to possess with intent to distribute a controlled substance) qualifies as a "controlled substance offense" for purposes of the career offender enhancement under U.S.S.G. § 4B1.1.  Mr. Dupree, in his petition for rehearing en banc, argued both that a § 846 conspiracy is not a "controlled substance offense" because Application Note 1 adds to, rather than interprets, § 4B1.2's text, and that a § 846 conspiracy is not a "controlled substance offense" because a § 846 conspiracy covers more conduct than a generic conspiracy.    

Wednesday, February 16, 2022

Campbell: En Banc Court Holds Court May Consider Forfeited Issues Sua Sponte in Extraordinary Circumstances

In United States v. Campbell, Case No. 16-10128 (Feb. 16, 2022), the en banc Court--in an opinion authored by Judge Tjoflat--considered whether the good-faith exception to the exclusionary rule is a proper ground for affirming Mr. Campbell's conviction despite the government's failure to raise that alternative ground before the panel, and answered in the affirmative.  The en banc Court also concluded that the good-faith exception applied, and accordingly, affirmed the denial of Mr. Campbell's motion to suppress.  

The district court determined that officers had reasonable suspicion to stop Mr. Campbell's car on account of his rapidly-blinking turn signal, and that officers did not unreasonably prolong the stop by asking Mr. Campbell twenty-five seconds worth of questions unrelated to the purpose of the stop.  Because the district court found the seizure reasonable, it did not address whether Mr. Campbell's consent to search his car was tainted or whether--as the government argued in supplemental briefing before the district court--the good faith exception to the exclusionary rule applied.  On appeal, Mr. Campbell once again challenged his seizure, and a panel of the Court affirmed.  In affirming, however, the panel considered the good-faith exception, which, though fully briefed in the district court below, was not addressed by the government on appeal.  The Court then granted Mr. Campbell's petition for rehearing en banc and asked the parties to focus on whether the Court may affirm based on the good-faith exception despite the government's failure to brief the issue.  

The en banc majority held that the Court may exercise its discretion to consider the good-faith exception despite the government's failure to brief the exception to the panel.  That is, the mere failure to raise an issue in an initial brief on direct appeal should be treated as a forfeiture of the issue, and therefore the issue may be raised by the court sua sponte in extraordinary circumstances after finding that one of the Access Now forfeiture exceptions applies.  The en banc majority treated the government's failure to raise good faith on appeal as a forfeiture, and not a waiver.  The en banc majority did so in light of the government's acknowledgement at oral argument that it was "conscious" of the good-faith exception when briefing to the panel.  In so holding, the en banc majority noted that classifying a failure to brief an issue as a waiver would unduly punish lawyers attempting to follow the Supreme Court’s advice on appellate briefing by removing even the possibility of addressing an important issue not briefed in an extraordinary case.  The en banc majority also noted that it was more appropriate to treat the failure to raise an issue in a brief as forfeiture, not waiver, and not to automatically assume waiver just because a party may have been aware of an issue but did not brief it. 

In this case, the en banc majority found that the fourth exception to forfeiture--where the proper resolution of the issue is beyond any doubt--applied.  The en banc majority also found that the case presented an extraordinary circumstance to justify the Court's exercise of its discretion to excuse the government's forfeiture for a number of reasons, including because of the strong policy considerations underlying the exclusionary rule.  The en banc majority noted that "[s]uppression of evidence . . . is our last resort, not our first impulse," and refused to exclude evidence based on government counsel's mistake (which would do nothing to deter police misconduct).    

Turning to the merits, the en banc majority held that Mr. Campbell's rapidly-blinking turn signal created reasonable suspicion that a traffic violation had occurred; the Court's holding in Griffin had been abrogated by the Supreme Court in Rodriguez, and, as such, officers' questions about the contraband in the car unlawfully prolonged the stop; and officers relied in good faith on Griffin, which, at the time of Mr. Campbell's arrest, was the Court's last word on the issue of prolongation.              

Judge William Pryor concurred, but wrote separately to "clarify some fundamental principles involving the en banc process, waiver, and the good-faith exception."  He noted: "This appeal concerns when the Judicial Branch should intervene on behalf of a criminal to exclude indisputably reliable evidence. And the result of this appeal is just: A criminal will receive the punishment that the district court decided he deserves without an unjustified exercise of judicial power by this Court."  He stressed that when rehearing a case en banc, the panel decision no longer exists, and the en banc court instead reviews the judgment of the district court.  As such, the majority correctly held both that the government may properly raise alternative arguments in support of the district court’s judgment before the en banc court that it failed to raise before the panel, and that the government has properly briefed the good-faith exception to the en banc court.   

Judges Newsom, Jordan, Wilson, Rosenbaum, and Jill Pryor dissented.  They viewed this case as one about judicial power and its limits.  The question presented, in their eyes, was: "Can an appellate court affirm a criminal defendant's conviction on a ground that, although argued to the district court, the government concedes it 'conscious[ly]' decided not to present on appeal?" The dissent's answer, no, relying on the principle of party presentation and the "critical" distinction between waiver and forfeiture.  "The majority opinion strongly hints at what is, in effect, a per se rule authorizing (and perhaps even requiring?) appellate panels in this circuit to ignore a failure by a governmental entity to argue the good-faith exception and to decide that issue sua sponte. It’s a bold stroke."   


Dennis: Offenses Referenced in Revocation Petition Include Lesser-Included Offenses

In United States v. Dennis, Case No. 21-10316 (Feb. 16, 2022) (William Pryor, Jordan, Anderson), the Court affirmed Ms. Dennis's revocation sentence.  

The issue addressed on appeal concerned the notice that a probationer must receive before her probation can be revoked.  Ms. Dennis was serving a sentence of 24 months probation when probation filed a petition to revoke her probation for violating her conditions of supervision.  The petition alleged that she had committed a felony (willful obstruction of law enforcement by threats or violence), and two misdemeanor offenses (simple battery on a police officer and theft of services).  At her revocation hearing, Ms. Dennis argued that she did not commit felony obstruction, which requires something more than misdemeanor obstruction, for which she was not charged.  She argued that she was entitled to written notice of the allegations against her, and that because there was no allegation of misdemeanor obstruction, she could not be found to have committed that offense.  The district court rejected Ms. Dennis's argument, found that she had committed the act of misdemeanor obstruction, and sentenced her to 2 years of supervised release.  

On appeal, this Court affirmed.  At issue was whether the petition to revoke Ms. Dennis's probation constituted written notice of the claimed violations of her probation.  Ms. Dennis argued that she had been deprived of notice and an opportunity to contest the finding that she had committed misdemeanor obstruction, in violation of the Due Process Clause and Fed. R. Crim. P. 32.1.  The Court disagreed, finding that in being warned that she was charged with committing the felony-level offense, she received adequate notice to defend against the misdemeanor-level offense.  This is so because the processes and rights to which one is entitled in revocation proceedings are less rigid and plentiful than the processes and rights to which one is entitled in criminal prosecutions, and because the process due to defendants even in criminal prosecutions does not require the specific identification of less included offenses in charging instruments if the greater offense is adequately identified and explained.  

As such, the Court held that a district court may find that a defendant committed a lesser included offense of a greater offense that was expressly mentioned in the petition for revocation, and that misdemeanor obstruction is a lesser included offense of felony obstruction.                   

Tuesday, February 15, 2022

Williams: Affirming Denial of Motion for Sentence Reduction Under § 404

In United States v. Williams, Case No. 20-14187 (Feb. 15, 2022) (Wilson, Luck, Lagoa), the Court affirmed the denial of Mr. Williams's motion for a sentence reduction under § 404 of the First Step Act, finding that he was not sentenced for a covered offense.  

Mr. Williams pleaded guilty to one count of distribution of unspecified amounts of crack cocaine within 1,000 feet of a housing facility, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860(a). He stipulated that the drug quantity attributable to him for purposes of calculating his guideline range was more than 500mg but less than 1g of crack cocaine.  His base offense level was calculated using the career offender enhancement and resulted in a guideline imprisonment range of 188 to 235 months.  His statutory penalty was 1 to 40 years' imprisonment and at least 6 years of supervised release, pursuant to 21 U.S.C. §§ 841(b)(1)(C) and 860(a).  He was sentenced to 200 months' imprisonment followed by 6 years of supervised release.  

On appeal of the district court's denial of his motion to reduce his sentence based on the First Step Act, Mr. Williams argued that, because his 21 U.S.C. § 860(a) conviction was a “covered offense” under the First Step Act given that the Fair Sentencing Act modified § 860(a) by modifying 21 U.S.C. § 841(b), the district court erred in finding him ineligible for a sentence reduction.  The Court disagreed.  

Citing to the Supreme Court's decision in Terry and its own opinion in Jones, the Court rejected Mr. Williams's argument that § 860(a) incorporates § 841(b) entirely.  Instead, the Court reasoned that whether an element's offenses are spread across multiple sections or subsections of the U.S. Code is not relevant; the proper inquiry is whether the offense--defined by its elements--was modified by the Fair Sentencing Act. Applying the Supreme Court's reasoning in Terry to § 860(a), the Court held that Mr. Williams’s conviction under §§ 841(b)(1)(C) and 860(a) was not a covered offense under § 404 because the penalty for his offense was set by § 841(b)(1)(C), which the Fair Sentencing Act did not alter.  Additionally, none of the distinctions between the offense defined by § 841(a) and (b)(1)(C) and Mr. Williams’s offense were affected by the Fair Sentencing Act nor central to the holding in Terry.    

The Court further bolstered the viability of its opinion in Jones post-Terry.  It noted that the there is no indication that Jones’s instructions on determining a “covered offense” are at odds with Terry, especially considering that Jones did not expressly resolve whether the Fair Sentencing Act also modified § 841(b)(1)(C).  The language in Jones indicating that a defendant could have been sentenced for a covered offense if his statutory penalties remained the same now does not mean that Mr. Williams, whose statutory penalties were not modified, is indeed eligible for a reduction.        

Wednesday, February 09, 2022

Washington: Clarifying Probable Cause Standard in Context of Arrests

In Washington v. Durand, Case No. 20-12148 (Feb. 7, 2022) (William Pryor, Lagoa, Schlesinger (M.D. Fla.)), the Court, in a 42 U.S.C. § 1983 case, addressed whether an officer must release a suspect detained pursuant to a valid arrest warrant when the officer learns of possibly exculpatory evidence.  

Here, during the investigation of the murder of an elderly woman, Vivianne Washington was arrested pursuant to a warrant based on a tip from a confidential informant that she was involved in the crime and a positive photograph identification by a perpetrator who had already confessed.  Shortly after Ms. Washington's arrest, however, police officers brought her in front of the perpetrator, who said, "That's not her."  Officers did not immediately release Ms. Washington.  Instead, she was detained for an additional twenty hours, and only released when the perpetrator confessed that he had lied about Ms. Washington.

Ms. Washington argued that police officers had an affirmative duty to return to the magistrate to inform him that the perpetrator had failed to identify her in person, and that their failure to do so violated her right to be free from unreasonable seizures under the 4th and 14th Amendments because there was no longer probable cause to support her detention.  

The Court disagreed and upheld the district court's grant of qualified immunity to the police officers involved for three reasons: (1) probable cause persisted throughout Ms. Washington's detention; (2) police officers were entitled to rely on the facially valid and lawfully obtained warrant; and (3) police officers did not affirmatively act to continue the prosecution against Ms. Washington.  

In so holding, the Court clarified the probable cause standard in the context of arrests.  Relying on the Supreme Court's opinion in District of Columbia v. Wesby, 138 S. Ct. 577 (2018), the Court explained that probable cause exists when the facts, considering the totality of the circumstances and viewed from the perspective of a reasonable officer, establish a probability or substantial chance of criminal activity.  The Court disclaimed reliance on an older standard that predated Wesby, which required "facts and circumstances within the officer's knowledge, of which he or she has reasonably trustworthy information that would cause a prudent person to believe that the suspect has committed, is committing, or is about to commit an offense."      

Tuesday, February 01, 2022

Maurya: Vacating Restitution Order and Sentence on Ex Post Facto Grounds

In United States v. Maurya, Case No. 19-10746 (Feb. 1, 2022) (William Pryor, Grant, Anderson), the Court affirmed Nathan Hardwick's convictions, but vacated the restitution portion of his sentence and remanded.  The Court vacated Asha Maurya's sentence and remanded for resentencing.  

On appeal, both Hardwick and Maurya challenged the restitution order requiring a payment of over $40 million because the district court failed to support its order with any reasoning.  The government conceded that the district court failed to support its calculation with any factual findings, and the Court agreed.  As a result, the Court vacated the restitution order and remanded for the district court to "correct its oversight."  

Maurya also argued that her sentence must be vacated because the district court applied a sentencing enhancement that did not exist when her offense was committed, therefore violating the Constitution's prohibition against ex post facto laws.  Applying plain error review, the Court agreed.  The Court noted that though courts typically apply the Guidelines in effect at the time of sentencing, the Ex Post Facto Clause prohibits the use of the Guidelines issued after the offense that create a higher applicable sentencing range.  In this case, the district court used the 2018 Guidelines, which included a 2-level substantial financial hardship enhancement added in 2015--after Maurya's offense conduct.  The Court found error, and noted that it was "unmistakably plain."  The Court also found the difference in Guidelines range enough to show a "reasonable probability of a different outcome absent the error" that affected Maurya's substantial rights, which the Court also found sufficient to satisfy the fourth prong of plain error review.  

The Court rejected all of Hardwick's challenges to his convictions.  Hardwick first argued that it was error for the court to deny his request for a bill of particulars before trial.  The Court found no abuse of discretion because the indictment put Hardwick on notice of the charges against him.  A bill of particulars cannot be used to force the government to reveal its theory of the case, nor can it be used to compel the government to provide the essential facts regarding the existence and formation of a conspiracy.  

Hardwick next challenged the district court's limitation of his 404(b) evidence as to Maurya, which he intended to use to establish her modus operandi.  The Court found no abuse of discretion in the district court's decision to exclude a suicide note and a video, and to limit the defense to 2 witnesses instead of 4.             

Hardwick next challenged the district court's decision to admit as an exhibit a summary chart.  The Court found no abuse of discretion because the chart was properly admitted under FRE 1006--the assumptions made in the chart were supported by evidence in the record.  

Hardwick next challenged the district court's decision to allow the government to ask a witness about Maurya's guilty plea because it allowed the government to get in information about her without having to call her to testify.  The Court found no abuse of discretion because the defense had already informed the jury of her plea deal.  

The Court also rejected Hardwick's challenges to the sufficiency of the evidence as to conspiracy to commit wire fraud, wire fraud, and making a false statement to an FDIC-insured financial institution.  

Finally, the Court rejected Hardwick's remaining challenges to the jury instructions, that cumulative error rendered his trial unfair, and that his sentence was substantively unreasonable.  

Wednesday, January 26, 2022

Chamu: Rejecting Florida Cocaine Overbreadth Argument in Immigration Context

In Chamu v. U.S. Att'y Gen., No. 19-13908 (Jan. 26, 2022) (Branch, Grant, Brasher), the Court, on appeal from a Board of Immigration Appeals ("BIA") decision, found Mr. Chamu ineligible for cancellation of removal on account of his prior conviction of an offense "relating to a controlled substance (as defined in section 802 of title 21)"--namely cocaine possession under Fla. Stat. §  893.13(6)(a).

Mr. Chamu argued that the Florida statute was overbroad because Florida considers some substances to be cocaine that the federal government, in the federal controlled substance schedules, does not.  He also argued that the Florida statute was overbroad because it covered more states of mind than its federal counterpart--that is, the Florida possession statute alone presumes that a defendant knows a possessed substance is illegal, whereas federal law requires proof of knowledge.  

The BIA rejected both of his arguments.  As to his first argument, the BIA accepted that the Florida and federal definitions were not a perfect match, but concluded that the mismatch made no difference because Mr. Chamu had failed to show a "realistic probability that the Florida statute would be enforced more broadly."

The Court, reviewing the BIA's determination, applied the categorical approach to determine if § 893.13 is overbroad, and noted that Mr. Chamu's challenge rested entirely on the facial inconsistencies between the federal and state cocaine statutes--the federal statute omits a subcategory of cocaine isomers that the state statute does not, namely nongeometric diastereomers.  But even accepting that, the Court found that Mr. Chamu's argument failed because it went no further.  "Even if some chemical compounds have nongeometric diastereomers, nothing in the record suggests that cocaine has any, let alone that they exist in the quantities required for an offender to be prosecuted for possessing them. If cocaine does not have a nongeometric diastereomer, then the two statutes cover exactly the same ground."  

Mr. Chamu bore the burden of proof, and offered no proof to support his allegation that an existing cocaine stereoisomer falls outside the federal definition.  Accordingly, the Court declined to hold that Florida's statute was broader than its federal counterpart based only on the possibility that it might be so.  Though Mr. Chamu relied on the expert declaration of a chemist, the declaration established only that, as a matter of chemistry, some substances have stereoisomers that are neither optical isomers nor geometric isomers.  The declaration failed to assert the existence of a cocaine stereoisomer that falls outside the federal definition--it gave "no examples of an actual isomer that is a diastereomer but not a geometric isomer of cocaine."  

In so holding, the Court distinguished numerous out-of-circuit cases holding the opposite because those cases involved different state statutory definitions and different burdens of proof.  The Court also noted in footnote 3: "We do not mean to suggest that identifying a specific chemical compound covered by state (and not federal) law is sufficient to show a realistic probability of prosecution. More is likely required. But at least identifying such a substance is a necessary first step."  As such, while the Court noted it could not hold Florida's definition of cocaine to be completely consistent with the federal definition, it was holding that Mr. Chamu failed to prove that Florida's definition covers more substances.  

Additionally, the Court rejected Mr. Chamu's mens rea argument because the federal immigration statutes do not reference mens rea, so the Court, applying the categorical approach, had nothing to compare between the federal and state statutes.  The Court also declined Mr. Chamu's invitation to add a mens rea requirement to the federal immigration statutes in order to apply the categorical approach.   


Monday, January 24, 2022

Nicholson: Affirming Child Pornography and Child Sex Abuse Convictions

In United States v. Nicholson, No. 19-11669 (Jan. 24, 2022) (Jill Pryor, Luck, and Brasher), the Court affirmed Nicholson's convictions for child pornography and child sex abuse.

On appeal, Nicholson made three arguments: (1) the evidence was insufficient as to three counts; (2) the district court should have suppressed the evidence from the searches that occurred in New York and Kentucky; and (3) the district court should have granted his motion for a mistrial when it admitted, but then excluded, six images found in a camera's unallocated space.  

As to the first issue, the Court found the evidence sufficient to sustain the convictions.  It first found that with regard to convictions under 18 U.S.C. § 2423, the government need not prove actual sexual activity, and that evidence of actual sex acts is not the only way to prove the criminal intent to commit those acts.  The Court next rejected Nicholson's venue challenge to his conviction under 18 U.S.C.  §§ 2251(a), (e).  The Court reaffirmed that venue need only be proved by a preponderance of the evidence as opposed to beyond a reasonable doubt.  Additionally, the Court noted that there need not be direct proof of venue where circumstantial evidence in the record as a whole supports the inference that the crime was committed in the district where venue was laid.  

As to the second issue, Nicholson argued first that the district court should have granted his motion to suppress images of child pornography found on his laptop in New York because the government failed to follow an addendum appended to the search warrant that required any search of electronic media be completed within sixty days, instead searching his laptop about six months after obtaining the warrant.  The Court disagreed, finding that the Fourth Amendment does not specify that search warrants contain expiration dates and contains no requirements about when the search or seizure is to occur or the duration thereof.  Additionally, the probable cause that justified the warrant did not dissipate or go stale.  The Court also noted that any violation of Fed. R. Crim. P. 41 did not support suppression of the evidence.  

Nicholson also argued that evidence resulting from the Kentucky search of the contents of the truck he had been driving should have been suppressed.  The government conceded that the FBI's delay in securing a warrant for the items taken from the truck violated the Fourth Amendment.  As such, the Court addressed whether the evidence gathered from the eventual warrant-based search of that property should have been suppressed.  The Court held no, finding that the good-faith exception applied.  Though the Court found the FBI to be negligent, its negligence "does not warrant suppression."  The Court also found that any error was harmless beyond a reasonable doubt.     

Finally, Nicholson argued that the court abused its discretion in denying his request for a mistrial based on the admission and publication of government exhibits that contained images of the victims obtained from his camera's unallocated space, which the government only learned about from Nicholson's own expert.  The Court disagreed, holding that Nicholson had not demonstrated "incurable prejudice" because the district court excluded the exhibits and instructed the jury that those images would be unavailable during deliberations.      


Friday, January 21, 2022

Garcon: Granting Rehearing En Banc

In United States v. Garcon, No. 19-14650 (Jan. 21, 2022), a majority of the judges in active service agreed to rehear the appeal en banc.  The Court vacated the panel's opinion.  

Thursday, January 13, 2022

Moore: Vacating Supervised Release Imposed at Third Revocation, but Affirming, Over Dissent, Imposition of Additional Term of Imprisonment

In United States v. Moore, No. 20-11215 (Jan. 13, 2022) (Newsom, Branch, Lagoa), the Court affirmed in part and vacated in part Moore's contempt conviction and sentences.  

Upon the third revocation of his supervised release, Moore was sentenced to 18 months' imprisonment and an additional 18 months' supervised release.  During the revocation hearing, the court also found him in criminal contempt and sentenced him to a consecutive term of 6 months' imprisonment.  

Moore was originally convicted of possession of several unregistered destructive devices, and sentenced to the statutory maximum for his offense--120 months' imprisonment followed by 36 months' supervised release.  He completed his term of imprisonment, but then had his supervised release revoked three times.  At his first revocation hearing, he was sentenced to 6 months' imprisonment and 24 months' supervised release.  At his second revocation hearing, he was sentenced to 18 months' imprisonment and 18 months' supervised release.  What occurred at his third revocation hearing forms the basis of this appeal.

On appeal, Moore first argued that the district court plainly erred in imposing an additional term of supervised release because it failed to account for the terms of imprisonment that were imposed upon the prior revocation of his supervised release.  The government conceded the issue, and the Court agreed.  The Court reasoned that Moore’s maximum term of supervised release upon his original conviction was 36 months.  And he was sentenced to a total of 42 months’ imprisonment for his prior revocations. Thus, under § 3583(h), because he had already served a term of imprisonment for prior revocations in excess of the statutory maximum amount of supervised release, the district court was not authorized to impose any additional supervised release and it was error for the district court to do so.  The Court found this error to be plain, citing to § 3583(h) and its prior precedent, United States v. Mazarky, 499 F.3d 1246 (11th Cir. 2007).   

Moore next argued that 18 U.S.C. § 3583(e)—the statute under which he was sentenced upon revocation—was unconstitutional because it allowed the district court to extend Moore’s sentence beyond the authorized statutory maximum for his offense of conviction based solely on “judge-found facts” in violation of the Fifth and Sixth Amendments as set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013).  More specifically, he argued that when his sentence is viewed in the aggregate, it totals 13.5 years, which exceeds the authorized statutory maximum of 13 years (based on combining the statutory maximum term of imprisonment and the statutory maximum term of supervised release).  Alternatively, he argued that the constitutional concerns could be avoided if the Court interpreted § 3583(e)(3) as imposing an aggregate limitation on revocation sentences that caps the total sentence a defendant may serve at the statutory maximum for the underlying offense.  The Court disagreed.  Reviewing for plain error, the Court held that there was no error, let alone one that was plain.  The Court reasoned that nothing in the text of § 3583(e) "provides that the full panoply of rights provided for in the Fifth or Sixth Amendments apply to § 3583(e) revocation proceedings, nor does the text provide that the total time a defendant may serve for his original conviction and revocation cannot exceed the combined statutory maximum terms of imprisonment and supervised release for the original offense of conviction.  Nor did the Court find a Supreme Court or 11th Circuit case directly on point.  The Court found itself bound by its prior opinion in United States v. R. Scott Cunningham, 607 F.3d 1264 (11th Cir. 2010), and found the Supreme Court's plurality opinion in United States v. Haymond, 139 S. Ct. 2369 (2019), not directly on point because it addressed a different provision of § 3583.  The Court found the lack of controlling authority to be fatal to Moore's claim, which was raised on plain error.     

Third, Moore argued that his revocation sentence was substantively unreasonable.  The Court rejected this argument.    

Fourth, Moore argued that the district court plainly erred in convicting him of criminal contempt without giving him an opportunity to allocute before sentencing him.  The Court disagreed.  Though norms suggest that a defendant be given an opportunity to be heard, no rule so requires.  Therefore, Moore's argument failed.  

Finally, Moore argued that the Court should exercise its "inherent supervisory authority" to modify the contempt sentence.  The Court found no abuse of discretion by the district court, and therefore refused Moore's request to modify his sentence.  

Judge Lagoa wrote separately to concur in part and in the result.  She took issue with Part II.B. of the Court's opinion, namely, the district court's decision to sentence Moore to 18 months' imprisonment for the third revocation of his supervised release, resulting in a cumulative total of 162 months' imprisonment for both the underlying offense and the 3 revocations of supervised release.  She noted that the standard of review in this case--plain error--made the difference in this case because she believed the issue to be one of first impression, without any controlling precedent from the Court.    

Judge Newsom dissented in part.  He noted that Moore was convicted of a federal crime that carried a statutory maximum penalty of 10 years in prison plus 3 years of supervised release. Because any supervised release time can (upon the occurrence of certain conditions) be converted into prison time, the defendant’s total statutory maximum penalty was 13 years in prison. Without convicting him of any new crimes, the district court sentenced the defendant to a total of 13 and a half years in prison. Because that sentence plainly violated the Fifth and Sixth Amendments inasmuch as it exceeded the statutory maximum of 13 years, he dissented from Part II.B. of the Court’s opinion.  His dissent relies upon Haymond, as well as on "foundational American law, embodied (most recently, but hardly exclusively) in Apprendi and its progeny."  He also noted that the majority opinion erroneously found itself bound by Cunningham, which addressed a different question entirely.  

Wednesday, January 12, 2022

Smith: Vacating Conviction for Improper Venue

In United States v. Smith, No. 20-12667 (Jan. 12, 2022) (William Pryor, Grant, Hull), the Court vacated the defendant's conviction for theft of trade secrets and related sentencing enhancements for lack of venue, affirmed the extortion conviction and related sentencing enhancements, and remanded for resentencing. 

The Court addressed whether an accused can be tried in a venue where he did not commit any of the conduct elements of the charged crime.  Defendant was a software engineer in Mobile, Alabama who obtained the coordinates of artificial fishing reefs in the Gulf of Mexico from a website owned by StrikeLines, whose office is located in Pensacola, Florida, but whose servers are located in Orlando, Florida.  He did so by bypassing StrikeLines's security measures, and then posted them to his Facebook page.  Defendant was convicted of one count of theft of trade secrets and one count of extortion, and received an enhanced sentence.  

In the district court, the defendant moved to dismiss the indictment, and then renewed the motion to dismiss at trial, on the grounds that venue was improper.  He argued that venue was improper in the Northern District of Florida because all prohibited conduct occurred in the Southern District of Alabama and the data that was accessed was stored in the Middle District of Florida.  The government responded that the stolen data was produced in the Northern District of Florida and later transmitted to Orlando, and that the effects of the crime on the victims in the Northern District of Florida were relevant for venue purposes so the court should adopt the "substantial contacts" test for venue.  The district court agreed with the government.

The Court on appeal found venue improper for the theft-of-trade-secrets count.  Venue was improper in the Northern District of Florida because the defendant never committed any essential conduct in that location.  The Court declined to adopt the government's effects-of-the-crime argument.  The Court also noted that the remedy for improper venue is vacatur of the conviction, not acquittal or dismissal with prejudice, and double jeopardy would not preclude a retrial in the proper venue.

As to the extortion conviction, the Court found venue to be proper and the evidence admitted at trial sufficient to support the conviction.  The Court first rejected defendant's argument that the lack of proper venue as to the theft-of-trade-secrets count amounted to structural error requiring that his extortion conviction be vacated.  Next, the Court found the evidence admitted to be sufficient to support the jury's verdict.  

Finally, as to the sentencing enhancements, the Court vacated the loss enhancement, as well as the enhancements for use of sophisticated means and special skills, because all were based on the now-vacated theft-of-trade-secrets offense.  The Court, however, affirmed the enhancement for obstruction of justice because defendant gave "false testimony" at trial.  The Court also rejected defendant's argument that he should have received a reduction for acceptance of responsibility.