Penn: Affirming ACCA Sentence Based on Florida Cocaine Sale Convictions

In United States v. Penn, No. 21-12420 (Mar. 24, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed the defendant’s ACCA sentence based on prior Florida sale-of-cocaine convictions.

In holding that the prior convictions were ACCA “serious drug offenses,” the Court rejected three arguments. First, circuit precedent foreclosed the defendant’s argument that a serious drug offense have a mens rea element requiring the defendant know the illicit nature of the substance, which Fla. Stat. 893.13 lacks.  Second, and in a question of first impression resulting in an extended discussion, the Court held that, although the least culpable conduct prohibited by 893.13 was “attempted transfer,” that conduct was covered by the word “distribution” in the ACCA definition and so was not overbroad. Third, applying Wooden, the Court held that the two prior convictions occurred on separate occasions because they occurred 30 days apart, and the Court rejected under plain error the defendant’s Apprendi argument, which was raised for the first time on appeal, because there was no precedent directly resolving the issue.

Batmasian: No Ancillary Jurisdiction Over Pardoned Defendant's Motion to Expunge Conviction

In United States v. Batmasian, No. 21-12800 (Mar. 24, 2023) (Branch, Luck, Antoon), the Court held that the district court lacked jurisdiction to consider the pardoned defendant’s motion to expunge his conviction.

The defendant filed his expungement motion in the district court that convicted him. But the Eleventh Circuit rejected the defendant’s reliance on the doctrine of ancillary jurisdiction. No court had ever expressly embraced such jurisdiction for a constitutional expungement request. And the Court declined to do so because the alleged constitutional violation—a purported denial of his First Amendment right to donate to charities—was the natural result of an otherwise valid arrest or conviction.

Files: Section 404 Does not Permit Sentence Reduction for Non-Covered Offenses, Admits Lengthy Discussion about Holding/Dicta

In United States v. Files, No. 21-12859 (Mar. 24, 2023) (Newsom, Luck, Tjoflat), the Court affirmed the denial of the defendant’s motion for a reduced sentence under Section 404 of the First Step Act.

The question in the case was whether the district court had authority to reduce the defendant’s sentence for a non-covered offense in addition to a covered offense. In Denson, the Court had previously stated that district courts could reduce a sentence only for a covered offense.  Here, the Court concluded that this statement in Denson was part of the holding of the case. And, it concluded, the Supreme Court’s decision in Concepcion did not abrogate that holding. The Court engaged in a lengthy discussion (which Judge Luck did not join) about when a statement is “necessary” to the result and thus forms part of the holding rather than dicta.

Judge Newsom, joined by Judge Tjoflat, concurred to explain why he believed it is a bad idea for appellate courts to issue alternative holdings.

Morel: Affirming Drug Convictions After Judge Interrupted Trial to Correct Misunderstanding of Law on Conspiracy

In United States v. Morel, No. 20-14315 (Mar. 23, 2023) (William Pryor, Rosenbaum, Marcus), the Court affirmed the defendant’s convictions for importing cocaine.

First, the district court interrupted the trial to instruct the jury about the law of conspiracy after a witness incorrectly used the term incorrectly, implying that he had to personally know the defendant in order to conspire with him. The district court’s sua sponte instruction was not an discretion or an impermissible departure from the court’s neutral role, as it merely and accurately clarified the law in order to prevent confusion, and did not otherwise comment on the witness’s testimony.

Second, the evidence was sufficient to support the jury’s finding that the defendant knew that the contraband on board the vessel was cocaine in particular.  Applying the prudent-smuggler doctrine, the Court emphasized, among other facts, that the defendant was communicating and working closely with one of the co-conspirators (who knew about the cocaine), the defendant was invited to unload the cocaine (which was visible in the packages), and the defendant was privy to the time and location of the drug shipment and its final destination.

Williams: Section 404 of First Step Does Not Mandate the Reduction of a Sentence Above the Post-FSA Statutory Range

In United States v. Williams, No. 21-12877 (Mar. 23, 2023) (William Pryor, Hull, Marcus), the Court affirmed the denial of the defendant’s motion for a reduced sentence under Section 404 of the First Step Act.

The defendant was eligible for a reduced sentence, and his life sentence exceeded the 30-year statutory maximum that applied after retroactive application of the Fair Sentencing Act. However, the Court held that the district court had the discretion to leave that life sentence in place because the text of the Fair Sentencing Act did not require the court to reduce any sentence, and the Supreme Court confirmed that understanding in Concepcion.  The Court rejected the defendant’s argument that leaving a sentence above the new statutory maximum was a per se abuse of discretion.  The Court explained that defendants cannot use Section 404 to re-litigate the legality of their sentences.  Finally, the district court adequately explained its decision to deny the motion by addressing the defendant’s arguments and weighing the 3553(a) factors.

Clowers: District Courts Remain Bound by Pre-Apprendi Judge-Made Drug-Quantity Findings in First Step Act/Section 404 Proceeding

In United States v. Clowers, No. 20-13074 (Mar. 14, 2023) (Jill Pryor, Grant, Anderson), the Court affirmed the denial of a motion for reduced sentence under Section 404 of the First Step Act.

The Court first agreed with the parties that engaging in a continuing criminal enterprise involving crack under 21 U.S.C. 848 was a “covered offense” under Section 404.  The defendant received a mandatory life sentence before Apprendi, and the judge rather than a jury made drug quantity findings for purpose of sentencing.  Applying the Eleventh Circuit’s decisions in Jones/Jackson, the Court held that the district court remained bound by that judge-made drug-quantity finding when determining what the statutory range would be under the Fair Sentencing Act.  Because the statutory range would remain the same based on that judge-made drug-quantity finding, and because the defendant received the statutory minimum sentence of life, the district court could not reduce his sentence under Section 404.

Shamsid-Deen: 922(g)(9) Defendant Failed to Prove Waiver of Jury Trial Right in State Court Was Not Knowing and Voluntary

In United States v. Shamsid-Deen, No. 20-11877 (Mar. 6, 2023) (Jill Pryor, Branch, Ed Carnes), the Court, on a government appeal, reversed the district court’s order granting the defendant’s motion to suppress.

The defendant was prosecuted under 18 U.S.C. 922(g)(9) for possessing a firearm after having previously been convicted of a “misdemeanor crime of domestic violence.” By statute, a prior conviction does not qualify as a “misdemeanor crime of domestic violence” where the defendant did not knowingly waive his right to a jury trial. In this case, the district court found that exception applied and therefore granted the defendant’s motion to suppress evidence of his prior Georgia battery conviction. The government appealed and the Eleventh Circuit reversed.  Since the district court’s ruling implicated the validity of a waiver of a constitutional right, and it involved a mixed question of law and fact, the Court reviewed the district court’s waiver ruling de novo, not for abuse of discretion. The Court also determined that the defendant bore the burden of production and persuasion to show that the waiver was not knowing and voluntary, since that issue was a statutory exception that did not negate an element of the offense. Finally, the Court concluded that the defendant failed to establish that he did not knowingly and voluntarily waive his right to a jury trial in Georgia based on the language of forms he signed and a transcript of the proceedings.

Judge Jill Pryor concurred only in the judgment, without issuing a written opinion.

Turner: Rule 704(b) Error Opining on Ultimate Issue Was Harmless in Felon in Possession Trial with Insanity Defense

In United States v. Turner, No. 20-12364 (Mar. 1, 2023) (Rosenbaum, Tjoflat, Moody), the Court affirmed the defendant’s felon in possession conviction.

At trial, the defendant raised an insanity defense.  Over the defendant’s objection, the government’s expert psychologist who had evaluated the defendant testified that he was able to appreciate the nature and quality and wrongfulness of his acts.  The Eleventh Circuit held that this testimony violated Rule 704(b) because it went to his mental state, which was an element of his insanity defense.  However, the Court held that this error was harmless because, even though the district court instructed the jury on the insanity defense, the defendant’s lay testimony of insanity was insufficient as a matter of law to establish that he had a severe mental disease that caused his wrongful conduct, as required by the Insanity Defense Reform Act of 1984.

Judge Rosenbaum dissent, opining that the error was harmless.  She emphasized that the majority usurped the role of the jury, the evidence was sufficient to instruct the jury, and the government failed to meet its burden to show that the Rule 704(b) error was harmless, as the insanity issue was important and close, the government intentionally elicited and emphasized the testimony, and there was no limiting instruction.