Eleventh Circuit Court of Appeals - Published Opinions

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 Dupree's appeal en banc, vacating the panel's prior unpublished opinion.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.