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.      

 

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.    

      

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.        

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.    

  

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.             

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.        

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.