Miles: Florida Conviction for Unlawful Possession of a List Chemical Not an ACCA "Serious Drug Offense"

In United States v. Miles, No. 21-12609 (Lagoa, Brasher, Boulee), the Court vacated the defendant’s ACCA sentence.

The Court held that a prior Florida conviction for unlawful possession of a listed chemical under Fla. Stat. 893.149 is not a “serious drug offense” under ACCA. The elements of that offense requires one to possess the chemical with reasonable cause to believe that some person will use it to manufacture a controlled substance. However, that conduct does not itself involve (i.e., necessarily entail) “manufacturing” or “possessing with intent to manufacture” a controlled substance, as required by ACCA’s “serious drug offense” definition.

Gary: Florida Aggravated Assault is a "Violent Felony" under ACCA

In United States v. Gary, No. 21-13249 (July 21, 2023) (Wilson, Luck, Hull) (per curiam), the Court held upheld the defendant’s ACCA sentence.

The Court held that Florida aggravated assault qualified as a “violent felony” under the ACCA’s elements clause. The Court relied on its decision in Somers, which reached that same conclusion after the Florida Supreme Court held that simple assault could not be committed recklessly. Therefore, the offense remained a qualifying predicate notwithstanding the Supreme Court’s decision in Borden.

Ahmed: Affirming Convictions Over Numerous Challenges, Including Those Related to the Pandemic

In United States v. Ahmed, No. 20-14264 (July 13, 2023) (Rosenbaum, Branch, Brasher), the Court affirmed the defendant’s convictions for healthcare fraud, wire fraud, and money laundering.

First, the Court found no Sixth Amendment violation due to counsel’s failure to visit the defendant during an overnight recess out of concerns about the pandemic. Any lack of communication was not due to the government or the court but rather the lawyer’s concern for his own health. There is no indication he would have otherwise visited the client during that recess. And the district court otherwise went to great lengths to facilitate communication. The Court also declined to address an ineffective assistance of counsel claim on direct appeal because the record was not sufficiently developed. Finally, the Court rejected a series of pandemic-related complaints—i.e., that the defendant was not provided Adderall during trial, he sustained a slip and fall injury in jail, the jail confiscated his legal materials, he was shackled during trial, and the jury was unengaged—because the district court remedied these issues, the jury did not see him shackled, and there was no indication that the jury was unengaged.

Second, the Court rejected a claim of prosecutorial misconduct arising from the government’s insinuation during cross examination that a defense witness illegally prescribed medication under Florida law. The Court held that, even if that was correct, the defense did not hinge on that issue and there was no prejudice.

Third, the Court rejected three evidentiary claims. First, the district court excluded the defendant’s expert after she invoked her Fifth Amendment privilege. The Court upheld that exclusion because the district court conducted a particularized inquiry, the witness had a basis for invoking the privilege, and the expert’s unwillingness to answer certain questions prevented the district court and the government from challenging her qualifications and probing her credibility. Second, the Court upheld the exclusion of certain documentary evidence because they were hearsay and, although a close question, there was no abuse of discretion in finding that they were not business records. Finally,  the Court upheld the exclusion of testimony by the defendant’s former attorney about the defendant’s conduct because such character evidence was barred by Rule 404(a).

Garrison: Affirming Denial of 2255 Motion Challenging 924(c) Conviction Based on Davis

In Garrison v. United States, No. 20-13260 (July 13, 2023) (Branch, Luck, Antoon), the Court affirmed the denial of a 2255 motion challenging a 924(c) conviction based on Davis.

The 924(c) conviction in this stash house robbery case was based on two drug trafficking offenses and Hobbs Act conspiracy, the latter of which is no longer a predicate “crime of violence” post-Davis. At trial, the court instructed the jury that it could rely on any of the three predicates (including the now-invalid Hobbs Act conspiracy) to convict for the 924(c) count, and the jury returned a general verdict. While the Eleventh Circuit held that this scenario violated the Supreme Court’s decision in Stromberg, it concluded that the error was harmless because the predicate offenses were inextricably intertwined.  Thus, there was no possibility that the jury relied on the now-invalid Hobbs Act conspiracy predicate. The Court rejected the movant’s argument that it was precluded from looking beyond the jury instructions and the verdict to determine whether the 924(c) conviction rested on the invalid predicate.

Walker: Affirming Sex Trafficking by Coercion Convictions

In United States v. Walker, No. 22-10164 (July 13, 2023) (William Pryor, Luck, Hull), the Court affirmed the defendant’s sex trafficking convictions.

First, the evidence was sufficient to support a conviction of sex trafficking by coercion because a reasonable jury could have found that the defendant had a scheme, plan, or pattern intended to cause the woman to believe that failure to engage in prostitution would resulted in serious harm—namely, not having a place to stay and going hungry in a city hundreds of miles away from her home and family.

Second, and applying plain error, the government’s alleged failure to disclose its expert testimony before trial did not affect the defendant’s substantial rights because defense counsel anticipated the testimony and there was ample additional evidence of guilt apart from the expert’s testimony.

Perkins: Affirming 2255 Based on Claims of Alleged Incompetency at Sentencing

In Perkins v. United States, No. 20-14781 (July 10, 2023) (Branch, Grant, Schlesinger), the Court affirmed the denial of a 2255 motion.

First, the Court affirmed the denial of a substantive competency/due process claim. The district court did not clearly err in finding that the movant was competent at the time of sentencing and in rejecting the contrary determination by the movant’s expert.  The district court properly relied on jailhouse calls showing his knowledge of the proceedings. And the movant’s expert evaluated him six years after sentencing, and her testimony conflicted with other expert testimony.

Second, the Court affirmed the denial of an ineffective assistance of counsel claim based on counsel’s failure to investigate his mental health. The Court determined that counsel’s performance was not deficient because he took action after first learning about the movant’s mental health issues. In any event, any deficient performance was not prejudicial because there was no evidence that he would have been deemed incompetent at the time of sentencing had he been evaluated around that time.

Jews: Alabama Youthful Offender Conviction was not an Adult Conviction Under the Guidelines

In United States v. Jews, No. 22-10502 (July 6, 2023) (Wilson, Newsom, Lagoa), the Court vacated the defendant’s sentence.

The Court held that the defendant’s Alabama youthful-offender adjudication was not an “adult” conviction under U.S.S.G. 2K2.1 or 4A1.2. The Court reached that conclusion after applying four factors from circuit precedent. First, state law did not deem the prior to be a conviction at all, let alone an adult conviction. Second, the nature of the proceedings was, under state law, different in various substantive and procedural ways than an adult criminal proceeding. Third, he received a three-year sentence, a factor that cut in favor of an “adult” conviction but was not decisive. Fourth, and finally, the record did not reveal the amount of time he actually served. On balance, then, the Court concluded that the first two factors meant that the conviction was not “adult” under the Guidelines.