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.   

    

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.      

  

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.  

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.  

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.