Somers: FL Agg Assault a "violent felony" under ACCA

In Somers v. United States, No. 19-11484 (Apr. 25, 2023) (Jill Pryor, Anderson, Marcus), the Court affirmed Mr. Somers's ACCA-enhanced sentence. 

Mr. Somers argued that his prior conviction for Florida aggravated assault with a deadly weapon could not serve as an ACCA predicate because it can be committed with a mens rea of recklessness.  

The Court disagreed, and held that, because aggravated assault under Florida law requires a mens rea of at least knowing conduct, it qualifies as an ACCA predicate offense under Borden.

In so holding, the Court relied on guidance from the Florida Supreme Court, which held that the first element of the assault statute, section 784.011(1), requires not just the general intent to volitionally take the action of threatening to do violence, but also that the actor directs the threat at a target, namely another person.  That is, the Florida Supreme Court held that the Florida assault statute demands the specific intent to direct a threat at another person and therefore cannot be violated by a reckless act.   

Rolle: Holding § 1324(a) Has Extraterritorial Reach

In United States v. Rolle, No. 19-11354 (Apr. 14, 2023) (Wilson, Jordan, Brasher), the Court affirmed the district court's denial of Mr. Rolle's motion to dismiss the indictment. 

Mr. Rolle was charged with one count of conspiracy to encourage and induce aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I); 16 counts of encouraging and inducing aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii); and one count of conspiracy to allow, procure, and permit aliens to enter the United States, in violation of 8 U.S.C. § 1327.  

Mr. Rolle moved to dismiss the indictment, arguing that it failed to state a crime because his conduct occurred outside the United States.  The Court disagreed, and, as a matter of first impression, held that §§ 1324(a)(1)(A)(iv), (1)(A)(v)(I), and 2(B)(ii), apply extraterritorially.  Its holding is in line with the holdings of the  1st, 5th, 9th, and D.C. Circuits.   

In so holding, the Court affirmed the continued vitality of United States v. Bowman, 260 U.S. 94 (1922), which held the presumption against extraterritoriality does not apply “to criminal statutes which are, as a class, not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated . . . .”  The Court reasoned that § 1324(a)'s scope  and usefulness would be greatly limited if the statute were restricted to the territorial United States.  That is, given the nature of illegal immigration, much of the conduct under the statute is likely to occur beyond, at, or near our borders, and as a result, strongly suggests that Congress intended the statute to apply to extraterritorial conduct.

The Court also noted that its holding comported with international law because the protective principle supported the United States' exercise of jurisdiction.  

    

Burnette: Affirming Bribery-Based Convictions

In United States v. Burnette, No. 21-13990 (Apr. 11, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed Mr. Burnette's bribery-based convictions. 

Mr. Burnette, a real estate developer in Tallahassee, was accused of soliciting bribes from two undercover agents posing as property developers in order to sway a Tallahassee city commissioner's vote.  He was found guilty of Hobbs Act extortion, in violation of 18 U.S.C. § 1951(a); honest-services mail fraud, in violation of 18 U.S.C. §§ 1341, 1346; using a facility of interstate commerce to facilitate unlawful activity, in violation of 18 U.S.C. § 1952(a)(3); and making a material false statement to the FBI, in violation of 18 U.S.C. § 1001(a)(2).  

On appeal, Mr. Burnette's main challenge  turned on the Supreme Court's interpretation of the definition of "bribery"--as found in 18 U.S.C. § 201--in McDonnell v. United States, 579 U.S. 550 (2016).  In McDonnell, the Supreme Court narrowed the meaning of the term "official act," and clarified that in order to implicate the bribery statute's prohibition, a public official must either engage or agree to engage in (1) a sufficiently serious act--such as casting a vote (2) concerning a sufficiently serious and concrete matter.  

His challenge was, however, denied on the reasoning that some errors were invited, and others unpreserved, and Mr. Burnette could not meet the showing required for plain error--that the error affected his substantial rights.   

Mr. Burnette's other challenges--sufficiency of the evidence and evidentiary challenges--were also denied.  

The panel filed a separate concurrence to opine further on McDonnell and stress the importance of not "overread[ing]" the Supreme Court's opinion there.  The Court stressed that as an "inferior court," it and its sister courts "would do well to tread lightly and await further direction from [their] bosses before concluding that McDonnell revolutionized bribery laws as we have long known it."    

Dawson: Affirming Convictions for Sexual Exploitation of a Minor

In United States v. Dawson, No. 21-11425 (Apr. 5, 2023) (Wilson, Branch, Lagoa), the Court affirmed Mr. Dawson's convictions.  

The Court considered, as an issue of first impression, whether an adult who films himself exposing his genitals and masturbating in the presence of a child where the child is the object of the sexual desire in the film "uses" that child to engage in sexually explicit conduct for purposes of 18 U.S.C. § 2251(a), and held that such conduct fits squarely within the language of the statute. 

On appeal, Mr. Dawson argued that he did not violate § 2251(a) because the videos underlying his convictions depicted an adult engaging in solo, adult-only, sexually explicit conduct near a fully clothed minor who was neither the focal point of the images, depicted as a sexual object, nor otherwise involved in the sexual act.  He argued that his conduct did not constitute "uses" as that term is defined.  The Court disagreed, agreeing instead with the government's reading of § 2251(a)--that it covered passive use of a child in sexually explicit conduct.  That is, under § 2251(a), a minor must be involved in the offender's sexually explicit conduct, but need not necessarily be actively engaging in his or her own sexually explicit conduct.  

The Court noted, contrary to the Seventh Circuit in Howard, that its interpretation of "uses" in § 2251(a) did not pose a slippery slope problem because the statute ultimately requires fact-specific determinations.  As such, its passive interpretation of the term "uses" did not make the statute too broad.        

The Court also declined Mr. Dawson's invitation to rule in his favor by applying the rule of lenity because the Court found that the traditional tools of statutory interpretation provided sufficient clarity on the meaning of § 2251(a).  In so finding, the Court acknowledged that its application of the rule of lenity conflicted with those of the Third, Seventh, and Eighth Circuits.  Of note, the Court declined to hold--as the government argued--that Mr. Dawson's rule of lenity argument should have been reviewed for plain error because he failed to raise it below.  Instead, the Court clarified that a party cannot waive lenity--parties cannot waive the application of the correct law or stipulate to an incorrect legal test.   

Hall: Vacating Sentence and Remanding

In United States v. Hall, No. 22-10230 (Apr. 5, 2023) (Branch, Brasher, Ed Carnes), the Court held, as a matter of first impression, that a district court may not sentence a defendant to home confinement for violating the terms of his supervised release where the district court has also sentenced the defendant to the statutory maximum period of imprisonment for that violation.  The Court vacated Mr. Hall's sentence to the extent it imposed a term of home confinement and remanded for resentencing.  

Mr. Hall, a class C felon, violated the conditions of his supervised release.  After revoking his supervised release, the district court sentenced Mr. Hall to the statutory maximum two years' imprisonment and added one year of home confinement with location monitoring.  

The Court held that such a sentence is inconsistent with the limitation that a district court may impose home confinement "only as an alternative to incarceration."  As such, the district court lacked the authority to impose an additional year of home confinement on top of the statutory maximum sentence of incarceration.  In so holding, the Court joined the Fifth Circuit in United States v. Ferguson, 369 F.3d 847 (5th Cir. 2004), which reasoned that a court cannot impose the maximum term of incarceration under 18 U.S.C. § 3583(e)(3) and also impose a period of home confinement under (e)(4).