Jordan: No prosecutorial misconduct, no Double Jeopardy bar

In U.S. v. Jordan, No. 04-15381 (Nov. 3, 2005), the Court (Anderson, Black, Carnes), on a defendant’s interlocutory appeal, held that there was no basis for a Double Jeopardy bar to a second trial after the first trial had ended because the district court had found prosecutorial misconduct, but the Court of Appeals had determined that there was, in fact, no prosecutorial misconduct.
The defendant argued that even though the Court of Appeals had found no prosecutorial misconduct, the intent of the prosecutor was to goad the defense into making a motion for a mistrial, and that even though this motion was ultimately unsuccessful, Double Jeopardy should prevent further prosecution because the prosecution’s intent was wrongful.
The Court rejected the argument finding that it was precluded by the law of the case doctrine. The Court noted that a jurisdictional premise for its prior decision, which found no prosecutorial misconduct and reversed the district court’s dismissal of the case, was that Double Jeopardy would not bar further jurisdiction. Having held in its prior decision that it had jurisdiction to consider the government’s appeal, the Court implicitly held that Double Jeopardy would not bar further prosecution. This holding was now the law of the case, and doomed a Double Jeopardy challenge to further prosecution.
The Court further stated that, even if the law of the case had not applied, and even if it accepted the defendant’s "far fetched" theory that the prosecution opposed dismissal of the case on prosecutorial misconduct grounds while really trying to goad the defendant into seeking dismissal of the case, this theory would not support a Double Jeopardy bar. The Court held that prosecutorial misconduct – which it had no found present in this case – was a necessary element for a Double Jeopardy bar to apply in these circumstances.

Moriarty: Lifelong supervised release for sex offender

In U.S. v. Moriarty, No. 04-13683 (Nov. 1, 2005), the Court affirmed a conviction but reversed in part a sentence of a defendant who pled guilty to three counts of child pornography-related offenses.
The Court recognized that the district court failed during the plea colloquy to fully obtain a guilty plea from Moriarty, and to inform him of certain waivers which accompanied the decision to plead guilty. However, reviewing the matter to see if Moriarty’s "substantial rights" were affected, the Court noted that Moriarty responded "Because I am guilty" to the court’s questionind. Further, Moriarty could not show a "reasonable probability" that, but for the omitted plea information, he would not have pled guilty.
The Court rejected the argument that Booker error required reversal of Moriarty sentence. The Court pointed out that the district court at sentencing expressed intent to take Moriarty "out of society" by imposing the statutory maximum 240-month sentence and a lifelong term of supervised release. This indicated that Moriarty would not have received a lesser sentence under the advisory Guideline regime.
The Court also rejected the challenge to a USSG § 2G2.2(b)(4) five-level enhancement for a pattern of activity involving the sexual abuse of a minor (whether or not this conduct occurred during the course of the offense of conviction). At sentencing, one of Moriarty’s neighbors testified to a number of facts indicating that on one occasion, Moriarty had broken into her six-year old son’s bedroom, sexually assaulted him, and stolen his pull-up pajama pants. The Court found that this evidence sufficed to support the enhancement.
The Court also rejected the challenge to the district court’s refusal to grant a downward adjustment for acceptance of responsibility, despite Moriarty’s guilty plea. The Court noted that Moriarty contested the § 2G2.2(b)(4) enhancement, and that this was a basis for denying the acceptance of responsibility adjustment.
The Court rejected an Eighth Amendment challenge to the lifelong term of supervised release. The Court noted that Moriarty was 21 when he committed the offenses, but, regardless of his moral responsibility, the need for supervised release was to fulfill the goal of rehabilitation, and was consistent with the legislative history of the statute.
The Court, however, agreed with Moriarty that the "general sentence" of twenty years, which did not specify a specific count of conviction, and which exceeded the 10-year maximum for one count, was invalid . The Court vacated the sentence for "clarification" of the sentence. Similarly, the lifelong term of supervised release imposed as part of a general sentence was invalid, because the district court did not specify the count of conviction which supported this term of supervised release, and it exceeded the maximum for one count of conviction.

Dye: Sixth Circuit reversed on habeas

In Dye v. Hofbauer, No. 04-8384 (Oct. 11, 2005), the Supreme Court reversed the denial of habeas relief to a Michigan defendant. The Court found that the Sixth Circuit was wrong on both reasons it gave for denying habeas relief. Contrary to this opinion, first, the inmate did raise in state court a constitutional challenge to the prosecutor’s misconduct during the jury trial, and, second, the inmate did raise this same claim with sufficient particularity in his federal habeas petition.

Schriro v. Smith: States get first crack at mental retardation rules

In Schriro v. Smith, No. 04-1475 (Oct. 17, 2005), the Supreme Court summarily reversed the Ninth Circuit’s order requiring a jury trial on the question of the mental retardation of a Arizona defendant sentenced to death. The Court noted that Atkins v. Virginia, 536 U.S. 304 (2002) instructed the States to develop ways to enforce the constitutional restriction on the execution of the mentally retarded. The Ninth Circuit, therefore, was not authorized to impose a jury trial condition before Arizona developed its own procedures.

Eberhart: Rule 33 7-day deadline not jurisdictional

In Eberhart v. U.S., No. 04-9949 (Oct. 31, 2005), the Supreme Court held that the time limit of Fed. R. Crim. P. 33(a) for motions for a new trial, which requires such motions to be filed "within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period," is not jurisdictional. Instead, it is a "claim processing rule." Such rules are forfeitable by the party opposing the untimely motion if they are not properly invoked. The Court acknowledge confusion in its precedent which led Circuit Courts to treat Rule 33(a) as jurisdictional.

Kane: Pro se right to law library not clearly established

In Kane v. Espitia, No. 04-1538 (Oct. 31, 2005), the Supreme Court reversed the Ninth Circuit’s grant of habeas corpus relief to a California inmate who chose to proceed pro se but who was denied access to a law library in preparation for trial. The Court pointed out that its precedent, including Farretta v. California, 422 U.S. 806 (1975), had not clearly established whether a pro se defendant is entitled to library access, and in the absence of such caselaw one could not say that the California state rulings were contrary to clearly established law, as required by 28 U.S.C. § 2254(d)(1).http://a257.g.akamaitech.net/7/257/2422/31oct20051045/www.supremecourtus.gov/opinions/05pdf/04-1538.pdf

York: Waldon governs grand jury publicity

In U.S. v. York, No. 04-12354 (Oct. 27, 2005), the Court affirmed a conviction and 1,620-month sentence on a defendant convicted of RICO conspiracy and other crimes arising out of the interstate transport of minors with the intent to engage in unlawful sexual activity.
The Court rejected the argument that the indictment was invalid because the Georgia grand jury which indicted him was infected with adverse pre-trial publicity. The Court noted that U.S. v. Waldon, 363 F.3d 1103 (11th Cir. 2003) held that the protections against publicity affecting a jury during trial did not apply to a grand jury. The Court explained that its distinction was based on the different functions of the two bodies, and the different procedural restrictions which apply. Further, York did not show that the publicity surrounding his case "substantially influenced" the decision to indict him.
The Court also rejected the argument that the sexual abuse charges should have been severed from the financial structuring charges. The Court "readily" concluded that York showed no "actual prejudice," and noted that the jury was specifically instructed to consider each count separately.
Finally, the Court found no Booker plain error in York’s sentence. The Court pointed out that that district court, while imposing the consecutive sentences which yielded the 1,620-month total, stated the sentence was "appropriate" in light of "the nature of the crimes, the victims involved, the length of the sentence, and the totality of the circumstances." These comments undercut any inference of plain error based on the district court’s misapprehension of its powers under the then-mandatory Guidelines.
Finally, the Court rejected an ex post facto challenge to the court’s reliance on a 2000 version of the Guidelines, noting that an "essentially identical" version of the specific cross-reference at issue was in effect in the earlier version of the Guidelines.

Ochoa: No Batson "pattern" vs. hispanics

In U.S. v. Ochoa-Vasquez, No. 03-14400 (Oct. 20, 2005), the Court (Hull, Edenfield b.d., Barkett dissenting), the Court affirmed the conviction and sentence for drug trafficking.
The Court rejected the argument that certain documents in a related case should have been unsealed, because they involved a potential witness. The Court noted that most of the documents had been unsealed, and that Ochoa’s renewed motion to unseal had failed to specify the new grounds for the unsealing in violation of the Local Rule, which requires the different facts for a renewed motion to be stated by the movant. Further, the failure to unseal the documents did not prejudice Ochoa, because he failed to show he would have called the potential witness, and the Court’s own review of the documents did not reveal anything exonerating Ochoa.
The Court agreed with Ochoa that the district court’s "sealed docket" violated the Court’s caselaw regarding open trials, but found no prejudice because the district court ultimately unsealed most of the documents, and the other documents did not contain exonerating material.
The Court upheld the district court’s decision to empanel an anonymous jury, noting Ochoa’s link to an organized criminal organization and past efforts to obstruct justice by killing informants.
The Court rejected Ochoa’s Batson challenge to the government’s use of peremptory challenges against Hispanic venirepersons. Ochoa’s challenge rested on the percentage of strikes used to eliminate Hispanic jurors. But the district court found that it could not ascertain which anonymous venirepersons were Hispanic, and the Court deferred to that finding. The Court noted that the better practice would be to disclose to the parties beforehand, in anonymous jury cases, the self-reported ethnicity of potential jurors. Moreover, even if the district court could in fact determine the ethnicity of the stricken jurors, Ochoa failed to show a "pattern" of strikes. The government used five of its nine strikes against Hispanics, but accepted six; Ochoa struck seven of 13.

Callahan: no habeas relief for trial judge stepping into police interrogation

In Callahan v. Campbell, No. 04-12009 (Oct. 5, 2005), the Court (Tjoflat, Black, Wilson) denied habeas relief to a death row inmate sentenced to death for a 1982 murder.
The Court rejected challenges based on the fact that the Alabama trial judge who ultimately presided over Callahan’s trial stepped into the police interrogation room, while Callahan was being interrogated after arrest, to ascertain whether his right to counsel was being respected.
The Court found no Supreme Court case directly on point, and noted that the Supreme Court has merely held that a judge cannot adjudicate a case where he was also an investigator for the government. Here, the judge was not an investigator for the government, having not been in the room during the interrogation, and having only interved on the right to counsel question.
Further, the judge’s failure to recuse himself did not violate Callahan’s Sixth Amendment right to call witnesses. The Court noted that others testified about the incident and that the law does not give a defendant a right to call "a witness he perceives as most credible."
The Court also rejected the argument that Callahan’s trial lawyer was constitutionally ineffective for failing to object to the admission of some of Callahan’s incriminating statements to police. The Court noted that the Alabama state courts had found that these specific statements were admissible under state law, and that a lawyer is not ineffective for not objecting to statements that were admissible.
The Court also found that Callahan’s lawyer, Knight, who had since died, was not ineffective at the penalty phase. For one, when a lawyer is dead and unavailable, the Court presumes he was not ineffective. For another: "When we place ourselves in Knight’s position, which we must, we see the following: overwhelming evidence that his client committed a premeditated kidnapping, rape, and murder of a random victim, including a confession to the kidnapping and rape in which he concocted a prior sexual relationship with the victim, and insinuated his ex-wife was the real murderer; his client’s last two wives left him, in part, bexause he was physically abusive; his client had two previous convictions for assault with intent to murder, one of which arose from when he shot his own 11-year-old nice in the foot; his client’s past included no compelling mitigation evidence, such as mental health problems or physical abuse; and his client had already once been sentenced to death for the murder [in a sentence that was overturned and remanded]. Given the hand Knight was delath, we cannot say a decision to focus on mercy instead of mitigation was an unreasonable one."

Lee: Sufficient Mail Fraud Evidence

In U.S. v. Lee, No. 04-12485 (Oct. 5, 2005), the Court (Carnes, Pryor, Forrester b.d.) affirmed two defendants’ mail fraud convictions, but vacated one sentence on a double counting issue as to which the parties agreed.. The scheme involved writing checks on closed bank accounts.
The Court rejected the defendants’ challenge to the sufficiency of the evidence, finding that the letters the defendants wrote to their banks about their bank accounts were designed to further their scheme, that the letter written about foreclosure of their property were also designed to "obfuscate." The Court rejected the argument that the mailings were litigation documents which could not give rise to criminal liability. The Court distinguished U.S. v. Pendergraft, 297 F.3d 1198 (11th Cir. 2002), pointing out that the documents at issue did not involve court filings, but third-parties, whom they were trying to influence as part of their scheme. Moreover, Pendergraft did not involve documents which evidenced an "intent to deceive." The Court recognized "the real public policy concerns in allowing litigation documents to form the basis for a mail fraud claim," but said "it cannot countenance mailng false claims clothed in legalese to lenders, with the intent of perpetrating or perpetuating a fraud, even where litigation is ongoing."
Turning to the Booker sentencing issues, the Court found no error as to one defendant where the district court stated on the record that it would have given the defendant the same sentence whether the Guidelines were mandatory or advisory. As to the other defendant, the Court found no error in denying her a continuance so that she could be sentenced post-Blakely, because counsel ultimately informed the court that the defendant was prepared to go forward on the appointed sentencing date.
The Court rejected a challenge to the loss amount calculation, finding the court’s estimate of the loss was supported by the evidence. The Court also rejected defendant’s argument that the sentence should have reduced because the scheme was interrupted when the victims refused to honor the bad checks. The Court noted that an interruption beyond the control of the defendant is not a basis for a sentence reduction.
The Court rejected the argument that the sentence should not have been enhanced based on the existence of ten or more victims because some of these victims were able to offset their losses. The Court concluded that despite the offset, the victims were still considered victims for Guidelines purposes.
Finally, the Court rejected a hearsay challenge to the admission of a bank letter warning the defendants of "potential bank fraud," finding that the letter was not admitted for its truth, but for the purpose of showing that the banks were aware that the transactions were wrongful and so informed the defendants. The Court also rejected the challenge to the testimony of a lawyer that the defendants’ actions were illegal, pointing out that this statement was elicited on redirect, in response to cross-examination which opened the door.

Ramirez. Booker plain error where court felt it had no discretion

In U.S. v. Ramirez, No. 04-12040 (Sept. 30, 2005), the Court (Tjoflat, Anderson & Birch) affirmed the defendants’ cocaine-trafficking convictions, but vacated the sentences, finding "plain error" under Booker.
Co-defendants Ramirez and Angulo-Quinones were arrested on the high-seas; they had been aboard a go-fast vessel which contained more than 400 kilos of cocaine. Over Angulo-Quinones’ objection, the district court admitted in evidence, during his cross-examination, the fact of his arrest for a prior incident also involving a go-fast vessel and large quantities of cocaine.
The Court rejected Ramirez’ challenge to the sufficiency of the evidence. The Court concluded that his presence in proximity to a large quantity of cocaine in clear view on board his vessel, coupled with his changing account of events, sufficed to convict.
The Court also rejected Ramirez’ argument that his case should been severed, because of the prejudicial impact of the admission of Angulo-Quinones’ prior arrest for a similar offense. The Court found that any prejudicial impact was mitigated by the judge’s limiting instruction.
The Court also found no basis for a mistrial in the trial court’s instruction to the jury, in response to a question from the jury during deliberations, that it need no concern itself with this question. The Court found the instruction proper in the circumstances.
The Court found no reversible error in the admission of Angulo-Quinones’ prior arrest for a similar crime. The evidence was introduced during cross-examination, and was sufficiently relevant to Angulo-Quinones’ denial of not being acquainted with an accomplice in both incidents, and to his intent for the instant offense.
The Court rejected the "double-counting" challenge to the Guideline increase in Angulo-Quinones’ sentence for being a captain of a vessel, and for being the "leader and organizer" of the offense. The Court noted that it has approved the imposition of both enhancements in like circumstances in U.S. v. Rendon, 354 F.3d 1320 (11th Cir. 2003), and it rejected Angulo-Quinones’ attempt to distinguish this case on its facts, pointing out that Rendon did not require "specific facts" to be present for the two enhancements to be simultaneously applicable. Further, the district court correctly determined that Rendon controlled the double-counting challenge. However, because the Court was vacating the sentence under Booker, and because it could not be certaint that the district court would have given both enhancements in light of Booker, the Court instructed the district court to "revisit" the organizer/leader and captain of the boat enhancements
on remand.
Finally, the Court found plain error under Booker in the sentences. During sentencing, the district court said that it might have imposed a different sentence had it had "any discretion in this matter." Instead, the court said it felt bound by the Guidelines, and imposed sentences of 235 months and life on Ramirez and Angulo-Quinones, respectively. This showed plain error. The Court therefore vacated the sentences and remanded for resentencing. http://www.ca11.uscourts.gov/opinions/ops/200412040.pdf

Scott: Post Booker sentencing need not discuss each 3553(a) factor

In U.S. v. Scott, No. 05-1183 (Sept. 27, 2005), the Court affirmed the district court’s decision not to impose a sentence below the advisory Guideline range.
The Court noted that the law does not require the district court "to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors." The district court "adequately and properly considered the § 3553(a) sentencing factors," as evidenced by the fact that Scott’s counsel "argued at length that the factors in § 35539a) warranted a sentence below the Guidelines range." "In imposing a sentence at the low end of the Guidelines range, the district court stated that it had considered all the obvious things that you would normally take in consideration, particularly ‘the age of the child [victim].’ Thus, the district court explicitly considered the circumstances of the offenses. Further, the district court explicitly acknowledged that it had considered Scott’s arguments at sentencing and that it had considered the factors set forth in § 3553(a). This statement alone is sufficient in post-Booker sentences."

Quan Chau: Crawford Inapplicable at Sentencing

In U.S. v. Quan Chau, No. 05-10640 (Sept. 27, 2005), the Court, on "plain error" review, rejected the argument that the sentencing court erred in using hearsay evidence at the defendant’s sentencing hearing, in violation of the Confrontation Clause right recognized in Crawford v. Washington, 541 U.S. 36 (2004).
The Court noted that Crawford involved the use of testimonial evidence at trial, not sentencing. The Court recognized that its rule may be extended to sentencings in the future. However, in view of other Circuits’ holdings that Crawford does not alter the law that admission of hearsay testimony at sentencings is "okay," and the absence of precedent from the Eleventh Circuit or the Supreme Court on point, no plain error occurred.
The Court also rejected the challlenge to the defendant’s sentence, pointing out that the district court recognized its post-Booker authority to treat the Guidelines as advisory, even as it imposed a Guideline sentence.

Thompson: sentence vacated for Booker plain error

In U.S. v. Thompson, No. 04-12218 (Sept. 1, 2005), the Court upheld the convictions but vacated the sentences of defendants convicted of cocaine trafficking.
The Court rejected a challenge to the sufficiency of the evidence, noting the "parade" of government witnesses who testified as to their involvement in drug trafficking.
The Court also rejected one defendant’s motion for a severance. The Court pointed out that a post-arrest statement of one defendant did not mention a co-defendant, and its admission in evidence therefore did not violate the Confrontation Clause. Moreover, the "spillover effect" of evidence of one defendant as to another was not of a nature to create prejudice.
The Court also rejected a motion for a new trial based on new evidence, finding that, with diligence, the defendant could have obtained the evidence before trial.
The Court also rejected one defendant’s claim that her post-arrest statements were involuntary. The Court noted the credibility question presented as to whether the police withheld pain medication until they obtained responses to their questioning, but noted the Magistrate Judge’s resolution of these questions, and found no error in the district court’s adoption of them.
The Court also rejected the argument that the prosecutor’s closing statement violated the defendant’s right not to testify when it told the jury not to reward the co-defendant for testifying. The Court noted that the prosecutor did not directly or indirectly tell the jury to consider this defendant’s decision not to testify.
Finally, reviewing the sentences for Booker error under the plain error test, the Court vacated the sentences. The Court pointed out that during sentencing the district court characterized the 360-month as severe, and wondered whether it effectuated Congress’ true intent. The defendants therefore met the "heavy" burden of showing plain error.

Williams: Supervised release violations capped

In U.S. v. Williams, No. 04-15732 (Sept. 19, 2005), the Court (Dubina, Carnes, Marcus) reversed the imposition of a 21-month term of incarceration for a violation of supervised release, because Williams had previously been sentenced to incarceration for previous violation of supervised release, and the 21-month sentence would cause his total time incarcerated to exceed the 2-year aggregate maximum for supervised release violations. In so ruling, the Court accepted the government’s concession that the applicable statute (since revised), 18 U.S.C. § 3583(e)(3), contemplated a two-year statutory cap for the aggregate of all supervised release violations.
The Court rejected other issues on appeal because (a) a notice of appeal was not filed as to a prior first revocation of supervised release, (b) Williams failed to exhaust administrative remedies regarding his claim for additional credit for time served by not first pursuing this issue in a claim before the Bureau of Prisons, and (c) Williams other challenge to his sentence was moot because of the Court’s vacatur of the sentence on the grounds discussed above.

Howell: Felon can't get his guns back

In U.S. v. Howell, No. 04-13343 (Sept. 15, 2005), the Court (Birch, Carnes, Fay) held that the district court correctly rejected the defendant’s Rule 41 motion for return of $140,000 seized at the time of arrest and for the return of three firearms seized during a consented search at this residence.
The Court pointed out that the $140,000 was government cash used in sting operation to purchase drugs from Howell – a transcation for which he was convicted. Accordingly, this cash "never belonged to the defendant and he never gained ownership or control of these funds." Further, the Court rejected the argument that a court, not the government, should decide to whom the cash belonged: "The money belonged to the government at all times throughout the drug transaction."
The Court also noted that because Howell was a felon, he was not entitled to return of the firearms. This was contrary to federal law. The court noted that even constructive possession of a firearm by a criminal was illegal, and therefore declined to allow the firearms to gun to a relative, to be put up for sale.

Miranda: Reversing judgment of acquittal

In U.S. v. Miranda, No. 04-15920 (Sept. 14, 2005), the Court (Tjoflat, Pryor, Alarcon b.d.) reversed a judgment of acquittal granted to a defendant convicted of conspiracy to distribute methamphetamine.
The district court had found the evidence insufficient to sustain a conviction, concluding that it only showed that Miranda was present in an apartment containing methamphetamine, and fled to a back room when police stormed the premises. Reversing, the Court pointed to a number of facts which the jury could have attached incriminatory inferences to. Miranda had a pre-existing relationship with a significant drug figure. Miranda was present in the aparmtment when durgs were being couriered, and possibly discussed. There was a pervasive smell of acetone in the apartment. When officers raided the apartment, Miranda immediately ran to a back bedroom which contained large quantities of drugs, and two firearms, thereby attempting to protect the drugs from being seized and use guns to do so. (This evidence also supported Miranda’s conviction for possession of a firearm in furtherance of a drug trafficking crime).
Further, the district court relied on exculpatory evidence that was not presented to the jury. This should not have been considered in the motion for acquittal.
The Court rejected Miranda’s argument that the judgment of acquittal, alternatively, should be upheld based on the prosecutorial misconduct at trial. The Court pointed out that Rule 29 refers only to the insufficiency of the evidence.
The Court recognized that, on remand, the district court was free to reconsider its denial of Miranda’s motion for new trial, despite Miranda’s failure to cross-appeal this issue. The Court expressed on view on the merits of this motion.

Elso: Lawyer Laundering Client's Drug Cash

In U.S. v. Elso, No. 04-13043 (Sept. 2, 2005), the Court (Barkett, Marcus & George b.d.) the Court affirmed money laundering convictions against a lawyer charged with laundering the drug proceeds of one of his clients. Elso went to his client’s home to pick up cash and was apprehended driving away, with the cash.
Elso was charged with violating 18 U.S.C. §§ 1956(a)(1)(B)(i) & (ii) & § 1956(h). This provision criminalizes transactions designed to conceal the location of the proceeds of unlawful activity. Elso noted that another money laundering statute, § 1957, creates an exemption for "monetary transactions" which involve the payment of attorneys’ fees, and argued that this exemption applied to § 1956 charges, and that the jury should have been so instructed. The Court rejected this argument, noting that the two statutes are worded differently. In addition, Elso was in effect asking for an instruction that he should not be convicted if he lacked the mens rea for the crime, and the Court found that the court’s instructions adequately informed the jury of this.
The Court also rejected the argument that simply picking up cash did not constitute a money laundering "transaction." "Elso’s actions of retrieving [the client’s] money from a safe in [his] home, placing it in his car, and driving away constituted a transfer, and therefore qualified as a ‘transaction.’"

Winning ear, losing appeal

In U.S. v. Winingear, No. 05-11198 (Aug. 30, 2005), the Court (Tjoflat, Dubina, Pryor) rejected the defendant’s argument that a sentence was unreasonable because it should have been subjected to a downward departure to reflect the amount of time he had already spent in state prison.
The Court first noted that Booker did not change the pre-Booker rule that a district court’s discretionary denial of a downward departure was unappealable. Here, the district court recognized its authority to depart based on time spent in state prison, but declined to do so; hence, its ruling was unappealable.
The Court also rejected Winningear’s argument that his sentence was unreasonable. The Court noted the government’s claim that, post-Booker, sentences within the Guidelines are per se reasonable, but the Court declined to reach this argument. The Court noted that the sentence imposed on Winningear was one-tenth the length of the twenty-year maximum for his mail fraud offense. Further, Winningear defrauded people $19,600, had multiple previous convictions, committed his crime while still under sentence for a previous crime, violated his bond, and threatened to murder arresting officers as he fled them. The district court took care that its sentence provided Winningear with needed medical care. "In light of the factors outlined in section 3553(a), the sentence of the district court was reasonable."

Bordon: Feeney Amendment not Ex Post Facto

In U.S. v. Bordon, No. 04-10654 (Aug. 25, 2005), the Court (Anderson, Pryor, Hill), on a third appeal following a sentening and a resentencing, affirmed the sentences.
The defendants argued that it would violate Ex Post Facto to apply the Feeney Amendment provision which required a sentencing court to apply the version of the Guidelines which was in effect at the time of the defendants’ original sentencing. Application of this version of the Guidelines would deny the defendants the benefit of a recent change in the Guidelines. The Court noted that Ex Post Facto does not guarantee favorable changes in the law but merely protects against increased penalties.
The Court also affirmed the district court’s refusal to reconsider the monetary loss associated with the offenses, pointing out that the "law of the case" doctrine precluded revisiting this issue.
The Court also rejected the argument that the seventeen month delay betwen the issuance of the mandate after the second appeal and the subsequent resentencing violated the right to a speedy trial. The Court pointed out that a large part of the delay was due to defendants’ own brieifing of complicated issues.
In a footnote, the Court noted that no Booker relief was appropriate, despite the evidence "plain error" in the sentence – the district court stated on the record it would have imposed a lesser sentence but for the mandatory guidelines – because the defendants failed to raise Booker in their initial briefs.

Moreno: Limits on 3582(c)(2) relief

In U.S. v. Moreno, No. 04-15950 (Aug. 26, 2005) the Court (Birch, Dubina & Barkett) held that a defendant was not eligible for a post- conviction reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) to invoke the benefit of Amendment 591 of the Sentencing Guidelines, or to take account, in accord with Booker, of his post-sentencing rehabilitative efforts.
Amendment 591 requires that the initial selection of the offense guideline be based only on the statute of conviction rather than on non-jury findings of actual conduct. Moreno claimed that this Amendment prohibited the district court from selecting a base offense level based on drug quantity not found by a jury. The Court rejected this argument, holding that Amendment 591 only applies to the selection of the relevant offense guideline, not to the selection of an offense level within the applicable offense guideline.
The Court also found no plain error in the district court’s determination that it lacked a jurisdictional basis to reduce Moreno’s conduct based on his post-sentencing rehabilitative conduct. The Court noted that § 3582 does not contemplate a de novo sentencing. Further, Booker does not apply to cases on collateral review: "Booker is a Supreme Court decision, not a retroactively applicable guideline amendment by the Sentencing Commission. Therefore, Booker is inapplicable to § 3582(c)(2) motions."

Acosta: Interstate mailing need not involve "actual mailman"

In U.S. v. Acosta, No. 04-16480 (Aug. 24, 2005), the Court (Birch, Barkett, Wilson) held that the government satisfied the interstate jurisdictional requirement of the statute which criminalizes receipt of child pornography, and affirmed the district court’s denial of Acosta’s motion for judgment of acquittal.
After Acosta agreed by email to purchase a videotape containing child pornography, an undercover agent sent a videotape by registered mail to a post inspector in Miami. This inspector, in turn, packaged it as an express mail package to simulate its condition as if it were an actual package mailed from out of state, and then, dressed as a mail letter carrier, personally delivered the package to Acosta, who signed for the package.
The Court held that these facts established that the videotape was "mailed, shipped or transported in interstate commerce, by any means," in violation of 18 U.S.C. §§ 2252(A)(a)(%)(B) and (b)(2). The Court noted the "by any means" portion of the statute, and noted that this foreclosed Acosta’s argument that the evidence was insufficient because the case did not involve an "actual post office," or an "actual mailman."

Battle: Competent for trial

In Battle v. U.S., No. 03-14908 (Aug. 10, 2005), the Court (Edmondson, Birch & Black) (withdrawing its earlier opinion) denied § 2255 relief to a defendant sentenced to death for the killing a federal correctional officer.
The Court rejected Battle’s argument that he was incompetent to stand trial. "That Battle at times exhibited an antagonistic relationship with his lawyers over their representation of him is no indicator of incompetency. Many criminal defendants differ with their lawyers on how to best represent them." The Court further found that the district court did not error in siding with one set of experts instead of another in view of their "diametrically opposite" views. In addition, the court observed Battle throughout the trial.
The Court also rejected the argument that an insanity defense was forced upon Battle by his lawyers, finding that he at least tacitly consent to it.
The Court also rejected the argument that the indictment should have charged aggravating factors in order to be valid under Ring v. Arizona. The Court noted that Ring does not apply retroactively to cases like Battle’s.
The Court rejected Battle’s argument that the district court violated 18 U.S.C. § 3593(b), which requires the same jury which decided guilt to decide life or death, when it allowed alternate jurors to sit on the penalty jury after two jurors from the guilt phase had been dismissed for cause. The retention of alternates was a "wise" decision, and Battle suffered no prejudice because even if the alternates had less persuasive effect (for not having sat in on deliberations relating to guilt) a single vote against death would have sufficed to thwart a death sentence – and no alternate voted for life.

Yuknavich: Reduced Privacy on Probation

In U.S. v. Yuknavich, No. 04-10852 (Aug. 11, 2005), the Court (Black, Wilson, Nangle b.d.) upheld the constitutionality of a search by probation officers from the home of a convicted child sex offender.
Yuknavich was on probation following convictions on state charges of exploitation of a child and distributing obscene material. He was given a sentence of seven years probation. The terms of probation contained a number of specific prohibited activities, but did not require Yuknavich to submit to searches of his home by probation or police. During his probation, probation officers discovered child pornography at his home, and Yuknavich was convicted on federal child pornography charges. Yuknavich challenged the constitutionality of the search of his home.
Citing United States v. Knights, 534 U.S. 112 (2001), the Court found no Fourth Amendment violation. The Court noted that under Knights persons on probations have a lessened privacy interest, and that reasonable suspicion will support a police search. The Court recognized that Heath’s probation did not, unlike Knights, contain a provision expressly submitting to police searches. However, in Heath’s circumstances, on balance, even without this express provision, the search was legal. The Court noted that the search was limited to the Internet activities of Heath’s computer, and that Yuknavich was limited to work related use of his computer. His privacy expectations were further reduced because of his actions while on probation, which included violated the terms and placing himself in inappropriate situations. "For an individual, who was on probation for possessing child pornography on his computer, who admitted he had masturbated to fantasies of a young boy he had sexually assaulted, who had already twice accessed the Internet without anyone’s knowledge, to purchase a computer and not expect his probation officers to see red flags everywhere is inconceivable."
The Court found that the probation officers had reasonable suspicion to search Yuknavich’s computer at home, based on his conduct on the day in question, when he delayed ten minutes opening the door, and appeared shirtless at the door, and acted very nervous.

Heath: Judge, not Probation, must order mental health program

In U.S. v. Heath, No. 05-10175 (Aug. 12, 2005), the Court held that a sentencing court violated Article III when, as a condiction of Heath’s supervised release, it delegated to a probation officer the power to decide whether Heath had to participate in a mental health treatment program.
The Court found that the Article III violation met all four prongs of the "plain error" test. The error was "plain" under the Court’s precedent, and the decisions in other circuits, which held that requiring a defendant to participate in a mental health program is "unquestionably a judicial function." The error affected Heath’s substantial rights because absent the error, the district court, not the probation office, would have decided whether to incorporate mental health treatment in his sentence. "The fate of a defendant must rest with the district court, not the probation office." Finally the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
The Court rejected Heath’s argument that the district court had no authority to commit him, noting that probationers are often subject to limitations to which ordinary citizens are free.

Ellis: False Statement about sex undisruptive

In U.S. v. Ellis, No. 05-10150 (Aug. 5, 2005), the Court (Tjoflat, Pryor, Alarcon b.d.) the court vacated an upward sentence departure imposed a Georgia district attorney convicted of making a false statement in response to an FBI investigator’s question whether he had ever had sex with a woman with past or pending criminal charges in his judicial circuit. (Ellis falsely answered: "No.").
The defendant was charged with a number of federal crimes, including civil rights violations, arising of alleged improper contact with a criminal defendant in his circuit. However, the defendant ultimately pled guilty to just one count, the false statement count. At sentencing, the district court imposed an upward sentence departure based on "disruption of a government function," namely the postponment of other criminal cases and the adverse effect on the integrity of the district attorney’s office.
The Court found that any disruption of a governmental function was factually and legally irrelevant to the false statement to the FBI. The false statement did not cause any disruption in the local district attorney’s office. Moreover, the Guidelines only authorize a departure for conduct underlying a charge dismissed as part of a plea agreement only to the extent necessary to reflect the seriousness of the offense. Here, the disruption of a governmental function did not shed additional light on the nature of the false statement offense. Hence, the departure was invalid.
The Court remanded the case for resentencing consistent with Booker.

Bobo: No Double Jeopardy Bar

In U.S. v. Bobo, No. 04-15028 (Aug. 9, 2005), on a defendant’s interlocutory appeal, the Court held that Double Jeopardy did not bar a reprosecution of a defendant after his original case was dismissed because of the indictment was insufficient to charge the charged offenses.
After a first prosecution was dismissed on appeal on defective indictment grounds, the district court denied the defendant’s Double Jeopardy-based motion to dismiss a second prosecution for the same offenses. The defendant immediately appealed. The Court first noted that although it ordinarily lacked jurisdiction over defendants’ appeals of interlocutory orders in criminal cases, an exception exists for non-frivolous appeals of claims based on Double Jeopardy. Otherwise, if the defendant were denied an appeal and forced to go through a trial, an important part of the Double Jeopardy protection would be lost.
The defendant argued that a footnote in the Court’s original opinion effectively found that the evidence at the first trial was insufficient to sustain a conviction. The defendant argued that this finding barred a reprosecution. The Court rejected this argument because its footnote did not amount to a holding on the insufficiency of the evidence. The Court acknowledged that under its own prudential rules, it should have reached the sufficiency issue in its earlier opinion. But it held that having not done so, it would not attach Double Jeopardy consequences to its prior decision.

Campa: Cuban Spy Case Needed Another Venue

In U.S. v. Campa, No. 01-17176 (Aug. 9, 2005), the Court (Birch, Kravitch, Oakes, b.d.) held that the district court abused its discretion in denying a motion for a change of venue when the defendants, charged with being Cuban spies, were tried in Miami.
The Court stated: "Despite the district court’s numerous efforts to ensure an impartial jury in this case, we find that empaneling such a jury in this community was a unreasonable probability because of pervasive community prejudice. The entire community is sensitive to and permeated by concerns for Cuban exile population in Miami. Waves of public passion . . . flooded Miami both before and during this trial." The Court noted that the Elian Gonzalez case which overlapped with some of this case raised the community’s awareness of the concerns of the Cuban exile community. The Court pointed to news stories during the trial about the "paramilitary exile groups," and noted the "palpable" perception that these groups could harm jurors who rendered a verdict unfavorable to their views. The Court noted that one witness’ allusion to a defense’s counsel allegiance with Castro "only served to add fuel to the inflamed community passions."
The Court also noted the improper prosecutorial comments during closing arguments, and held: "Here, a new trial was mandated by the perfect storm created when the surge of community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references." [The prosecution had stated, inter alia, that the jurors would be abandoning their community unless they convicted the Cuban spies sent to "destroy the United States."].
The Court noted in closing that the Cuban-American community is a bastion of the traditional values that make America great, and said that its decision was consistent with these values.

Jordi: Terrorism departure need not transcend national boundaries

In U.S. v. Jordi, No. 04-14046 (Aug. 1, 2005), the Court (Dubina, Wilson, Coogler b.d.), on a government appeal, on the sentencing of a defendant convicted of attempted arson of abortion clinics, reversed a district court’s order finding that it had no Guideline authority to depart upward under USSG § 3A1.4, Application Note 4, for a crime involving terrorist acts intending to intimidate or coerce a civilian population.
The Court noted that even post-Booker district courts were still required to consider the Guidelines, and to do so correctly. It therefore reviewed the district court’s interpretation of the Guideline Application Note at issue.
The district court had based its decision on the statutory definition of the federal crime of terrorism, which has as an element "conduct transcending national boudnaries" – conduct which was not present in Jordi’s crime. The Court, however, found consideration of the statutory definition of this offense unnecessary to determining whether the Guidelines encouraged a departure in these circumstances. The Court instead looked to the language of the Guideline Application Note. Under this language, Jordi qualified for an upward departure. The Court therefore remanded the case for resentencing.

Hernandez: highway speeding detention not unreasonable

In U.S. v. Hernandez, No. 04-11776 (July 29, 2005), the Court (Edmondson, Dubina, Hull) held that a traffic stop did not result in an unconstitutional seizure, when the police officer became suspicious in response to questioning, and detained the defendant for 17-minutes during questioning before conducting a consensual search of the vehicle – a search which uncovered narcotics in a hidden compartment of the vehicle.
The Court noted the following circumstances which supported reasonable suspicion on the part of the officer who stopped defendant’s vehicle for speeding at 3:02 a.m. on an Alabama highway: (1) the implausible excuse for speeding (looking for a restroom for diarhea when the vehicle had just missed a rest station, (2) empty food containers in the vehicle, consistent with the practice of drug traffickers who do not want to stop for food and leave their vehicle unattended, (3) discrepancies in the stories about the trip’s length and purpose, (4) abnormal nervousness in the detainee, (5) nonstop travel at night in severe weather, (6) lack of knowledge of the trip’s destination, (7) travel between two main source cities for narcotics, (8) minimal luggage.
The Court noted that under Muelher v. Mena, 125 S.Ct. 1465 (2005), the length of a detention, not the unrelatedness of the questioning to the reason for the stop, is what makes a detention unreasonable. The Court further noted that a 17-minute stop would not, standing alone, likely be deemed too long to be unreasonable, even if, as in this case, it was justified by the evasive answers to police questioning.

Searcy: Enticing Minor to Sex Qualifies as "Crime of Violence"

In U.S. v. Searcy, No. 03-16282 (July 28, 2005), the Court (Dubina, Wilson, Lawson b.d.) affirmed the sentence of a defendant convicted of using the internet to induce a minor to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b).
The Court rejected the challenge to the sentencing court’s use of a prior § 2422(b) conviction as a "crime of violence" for career offender enhancement purposes. The Court noted that the definition of a "crime of violence" referred to a crime involved a serious potential risk of injury. Citing the legislative history of § 2422(b) and the caselaw of other Circuits, the Court found that offenses involving sex crimes against minors always involve a risk that physical force will be used to ensure a child’s compliance with an adult’s sexual demands.

Afanasjev: Unsworn indictment suffices for extradition

In Afanasjev v. Hurlburt, No. 04-13303 (July 26, 2005), the Court (Black, Hull, Hodges b.d.), the Court affirmed the denial of habeas relief under 28 U.S.C. § 2241, and upheld an order of extradition to Lithuania.
The Court rejected the argument that the unsworn 106-page Lithuanian indictment, which summarized statements made by victims and other witnesses, was insufficient evidence to establish probable cause for extradition. The Court stated that evidence presented for extradition need not be admissible at trial, pointing out that the unsworn statements of absent witnesses may be acted upon by the committing magistrate. The Court pointed out that the indictment lists the specific dates of events, the names of witnesses and victims, and the amount of money involved. The Court noted that the Magistrate compared witness statements with each fraud count, and ensured there was adequate evidence to support each count. The Court further noted that the fact of the defendants flight from Lithuania before trial on the fraud charges could also support probable cause.

Magluta: Co-Conspirator Hearsay Error

In U.S. v. Magluta, No. 03-10694 (July 27, 2005), the Court (Carnes, Cox, Mills b.d.) affirmed all convictions except one for obstruction of justice through juror bribery. The Court rejected Maglutta’s challenge to his sentence, but vacated the sentence for resentencing in light of whatever disposition occurred with regard to the now-vacated obstruction count.
The Court rejected the argument that Magluta’s prior acquittal on drug trafficking charges barred the introduction of evidence relating to these offenses at his subsequent money laundering trial. The Court noted that, for jury acquittals, the doctrine of collateral estoppel only bars reprosecution if the legal elements of the offense overlap and there is "factual identity" of the issues. Here, the elements did not overlap, because the money laundering charges did not require the government to prove that Maglutta himself engaged in drug trafficking: "As far as the money laundering statute is concerned, laundering someone else’s illegal proceeds is just as bad as laundering your own."
The Court also rejected Magluta’s attack on the sufficiency of the evidence supporting his money laundering convictions. Magluta argued that the laundered money lost its "tainted" character because, through the auspices of a government informant, it passed under the control of law enforcement. While stopping short of holding that this argument had no merit, the Court held that given the limited control of the government over the laundered funds in this case, the level of involvement was not enough to undermine the conviction.
The Court also rejected the argument that since Magluta used the proceeds of unlawful activity to pay his lawyers, here was merely spending the money, not concealing its source. However, Magluta’s use of a false name on the foreign bank account on which the checks were drawn showed that he went to "great pains" to conceal the fact that he was using drug proceeds to pay his lawyers.
The Court found merit in Magluta’s challenge to the admission in evidence, in the count for obstruction of justice through bribery of a juror, of the allegedly-bribed juror’s statement to a government informant -- two and half years after the bribery -- that he would keep quiet about the bribe. The statement had been admitted over a hearsay objection as a co-conspirator statement made in furtherance of the conspiracy. Magluta claimed that the statement was made well after the conspiracy ended. The Court noted that keeping an initial conspiracy secret is not part of the conspiracy, and concealing the source of the money when the juror made purchases was not part of the initial conspiracy either. The Court found that the error in admitting the statement was not harmless, as it directly tied Magluta to the bribe.
The Court rejected Magluta’s argument that documents were illegally seized from the trunk of a vehicle driven by Bonachea, a Magluta associate, based on an anonymous phone call to the U.S. Attorney alerting him to the existence of incriminating documents in the trunk. Bonachea’s vehicle was stopped for speeding, and a drug dog alerted for marijuana inside the car.
Assuming, without deciding, that Magluta had standing to contest the search of Bonachea’s vehicle, the Court found that the officers had probable cause to to believe that the trunk contained evidence of a crime. The anonymous tip was entitled to substantial weight, because it was correct as to several specifics relating to Bonachea, her schedule and her vehicle.
The Court found no error in the dollar drug amount imputed to Magluta for sentencing purposes. The Court pointed that any error was harmless in light of the sentencing court’s stated intention in the alternative to depart upward to reflect the "anomaly" of Magluta’s prior acquittal.
The Court also rejected the argument that Booker had undermined the Guideline rule which requires sentences to run consecutively to achieve the range set the guidelines. The Court noted that Booker had merely made the Guidelines advisory, and did not affect the validity of Guideline rule.

Taylor: Unproven complaints vs. police

In U.S. v. Taylor, No. 04-10667 (July 19, 2005), the Court (Birch, Carnes, Roney) affirmed convictions and a 322-month sentence imposed for being a felon in possession of a firearm, possesion of marihuana, and using a firearm during a drug trafficking offense.
The Court rejected the argument that the trial court should have allowed the defendant to introduce evidence of citizen complaints regarding the arresting police officer’s history of planting evidence, and brutality. The Court noted that all the incidents were "unproven." Citing U.S. v. Novaton, the Court noted that unproven allegations are not proper impeachment evidence. The Court further noted that the defendant had not proferred testimony of witnesses who could testify about specific misconduct. Moreover, brutality complaints were irrelevant to the drug and gun possession charges against Taylor.
The Court also rejected a challenge to the exclusion of background evidence concerning Taylor’s homelessness, finding the admission of such evidence within the broad discretion of the district court.
The Court further rejected Taylor’s complaint that he was not provided with discovery of a jailhouse’s companion’s testimony concerning Taylor’s confession of the crime. The Court pointed out that Fed. R. Crim. P. 16 only requires disclosure of witness statements given to the government under interrogation. Here, the statement was not given to the government, and it was not made in response to interrogation.
The Court also rejected the argument that introduction of Taylor’s prior gun conviction violated Rule 404(b). The Court found that this evidence, subject to the court’s limiting instruction, was admissible on the gun counts against Taylor.
The Court found no plain error under Booker in the sentence, noting that there was no evidence a lesser sentence would have been imposed had the sentencing court treated the Guidelines as advisory, not mandatory.

Holt: no writ of audita querela

In U.S. v. Holt, No. 04-15848 (July 19, 2005), the Court (Tjoflat, Birch, Dubina) denied an inmate’s Booker-based writ of audita querela which challenged a sentence.
At common law, a writ of audita querela – Latin for "the complaint having been heard" – allowed a challenge to a judgment after it was rendered because of some defense or discharge arising afterward. The Court noted, however, that such common law writs only survive the habeas corpus statutes to the extent that they fill gaps in these statutes. Here, there was no gap to be filed, because § 2255 provides a specific remedy for Holt’s type of challenge, namely a constitutional attack on his sentence. Therefore, no writ of audita querela could be entertained.
Further, because Holt had previously filed a first § 2255 motion, his current proceeding, converted into a § 2255 motion, was deemed "second and successive" under the AEDPA. As such, it had to be dismissed because Holt failed to obtain the requisite authorization from the court of appeals to initiate a second or successive § 2255 proceeding.

Smith: Applying Levy

In U.S. v. Smith, No. 03-15299 (July 18, 2005), the Court (Hull, Marcus, Hancock b.d.), after a remand from the Supreme Court for further consideration in light of Booker, applied its Levy rule and held that Smith was not entitled to raise a Booker challenge because he failed to raise the issue in his initial brief on direct appeal. The Court explained that the Supreme Court had applied its own prudential rule in Pasquantino in declining to consider a Booker issue, because the issue was not raised in the Court of Appeals or in a brief in the Supreme Court. Further, the Court noted that it was not "unduly harsh" or "overly burdensome" to require counsel to raise issues in their initial brief, even issues that appear foreclosed by circuit precedent.

Conklin: No habeas relief on "new evidence"

In In re Conklin, No. 05-13817 (July 12, 2005), the Court (Edmondson, Barkett, Wilson) (2-1, Barkett, J., dissenting), denied the habeas petition of a Georgia inmate facing execution.
Conklin sought to justify bringing a second habeas petition on the ground that "new evidence," in the form of a medical examiner’s opinion, was suppressed at his trial. The Court rejected this argument, finding that even in light of this evidence Conklin could not have met AEDPA’s stringent test of showing that no reasonable factfinder would have imposed the death penalty. The Court further noted that Conklin could in fact have presented this "new evidence" in his first habeas petition.
The Court expressed "misgivings" about the trial court’s constraints on the defense’s ability to prepare for trial and to obtain an expert witness, but found that it could not rule for Conklin without further guidance from the Supreme Court on the scope of a defendant’s Sixth Amendment right to expert assistance in putting on a defense of self-defense.

White: Booker inapplicable to revocation supervised release

In U.S. v. White, No. 04-13442 (July 14, 2005), the Court (Carnes, Marcus, Fay) rejected a Booker-based challenge to a sentence imposed for revocation of supervised release.
The Court first rejected a Booker-challenge to the district court’s November 1999 imposition of a sentence of supervised release. The Court noted that U.S. v. Almand, 992 F.2d 316 (11th Cir. 1993) precluded a challenge to an underlying sentence in a revocation context, and further noted that Varela v. U.S., 400 F.3d 864 (11th Cir. 2005) precluded Booker’s application in a section 2255 context.
The Court noted that the Supreme Court has yet to address whether Booker applied in supervised release revocation proceedings. The Court determined that even if Booker applied, there was no constitutional Booker error, because White admitted the facts that were used to enhance his sentence. Further, there was no Booker statutory error, because the district court did not treat the Guideline policy statements for revocation proceedings as binding. Moreover, in the absence of a Supreme Court case on point, any error could not be "plain."

Rivers fails Johnson habeas diligence test

In Rivers v. U.S., No. 03-11734 (July 14, 2005), the Court (Anderson, Barkett, Wilson), following a remand from the Supreme Court for further consideration of its denial of habeas relief in light of Johnson v. U.S., 125 S.Ct. 1571 (2005), reaffirmed its prior decision.
The Court recognized that Johnson had undermined some of the prior basis for its denial of habeas relief under the AEDPA statute of limitations. The Court noted, however, that Johnson required habeas petitioners who challenged their sentence on the basis of a vacatur of a state conviction had to show "due diligence" in obtaining the vacatur. Here, Rivers did not seek vacatur of his prior state conviction until more than four years after entry of the federal sentence which had been enhanced on the basis of this (now-vacated) prior state conviction. This precluded him from obtaining federal habeas relief.

McNair: no habeas relief based on bible in jury room

In McNair v. Campbell, No. 04-11400 (July 13, 2005), the Court denied habeas relief to an Alabama inmate sentenced to death for a 1990 murder.
The Court held that the defendant was not entitled to an evidentiary hearing concerning his ineffective assistance of counsel claim, and that the trial court erred in relying on evidence developed at its federal evidentiary hearing in support of its decision granting habeas relief. The Court pointed out that the defendant had not been "diligent" in his post-conviction proceedings in state court in developing evidence in support of an ineffectiveness claim. Consequently, he was now barred under 28 U.S.C. sec. 2254(e)(2) from attempting to develop this evidence later, in federal court.
The Court also rejected McNair’s challenge to his conviction based on the fact that the jury took a Bible back to the jury room. The Court found that this claim was not preserved in state court, and even had it been, it would not have entitled him to prevail in light of the strong evidence against him. The Court rejected the argument that the State had waived its reliance on the procedural bar, noting that under AEDPA, an affirmative waiver was required – which did not occur here.
Finally, the Court rejected the Batson challenge to the jury selection, finding no impropriety in the striking of individual jurors, and no evidence that an alleged practice by the local prosecutor of systematically striking blacks affected McNair’s jury selection.

Levy Reaffirms Levy

In U.S. v. Levy, No. 01-17133 (July 12, 2005), the Court (Anderson, Hull, Pryor), on remand from the Supreme Court for further consideration in light of Booker, reaffirmed its prior reported decisions in the case, and held that a defendant whose case was on appeal when Booker was decided waived a Booker challenge when he failed to raise a Booker claim in an initial brief on appeal.
The Court pointed out that the Booker opinion itself stated that the retroactive application of its holding to cases then pending on direct review would depend on "ordinary prudential doctrines." The Court further pointed out that in two recent cases, Shea v. Lousiana and Pasquantino v. United States, the Supreme Court recognized the applicability of ordinary rules of waiver to cases pending on direct review. "It seems relatively obvious that if the Supreme Court may apply its prudential rules to foreclose a defendant's untimely [Booker] claim, there is no reason why this Court should be powerless [to do so too]." The Court further noted that parties could, and did, challenge the constitutionality of the Guidelines pre-Booker, and reasoned that its waiver rule was not, therefore, unduly harsh.

King: Grief counseling not includable in restitution

In U.S. v. King, No. 04-14021 (11th Cir. June 30, 2005), the Court (Tjoflat, Kravtich, and Mills, b.d.) vacated and remanded a $21k order of restitution against a defendant convicted of attempted bank robbery based on the government's concession that more than $11k of the ordered restitution represented the bank's cost for providing grief counseling to its employees, something not authorized by the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A. However, on plain error review, the Court rejected Mr. King's claim that the ordered restitution violated his Sixth Amendment rights since the order was based on facts not admitted by him nor proven to a jury beyond a reasonable doubt. The Court noted that neither it nor the Supreme Court had held that Blakely/Booker applied to an order of restitution and that most of the other circuits had rejected such a claim. The Court thus concluded that Mr. King failed to demonstrate that the claimed error was plain.

Philipps: Attempt qualifies as drug conviction

In United States v. Phillips, No. 04-13720 (11th Cir. June 22, 2005), the Court (Carnes, Marcus, Kravitch) affirmed a seventy-month sentence imposed on a defendant who entered a plea of guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326. The Court resolved two issues of first impression in the Circuit. First, the Court rejected Mr. Phillips' claim that his prior state conviction for attempted sale of a controlled substance did not qualify as a drug trafficking offense under U.S.S.G. § 2L1.2. The Court noted that the commentary to § 2L1.2 expressly included "attempting to commit such [drug trafficking] offenses," in the definition of drug trafficking offenses that warrant a 16-level increase. Next, the Court rejected Mr. Phillips' claim that his state term of parole was prematurely terminated when he was deported. Mr. Phillips was released on parole in October 2002 and deported in December 2002. His term of parole was set to expire in February 2004. Mr. Phillips unlawfully reentered the United States in January 2004. The district court added two criminal history points to the guidelines calculation under § 4A1.1(d) because the offense was committed while Mr. Phillips was under a "criminal justice sentence." The Court noted that the commentary to that section defined a criminal justice sentence to include supervisory sentences "although active supervision is not required." The Court thus reasoned that Mr. Phillips' term of parole continued after his deportation even though he was not being actively supervised, and that the district court properly added the two criminal history points. Finally, the Court rejected a preserved Booker claim noting that enhancements based on prior convictions do not implicate the Sixth Amendment. As to the statutory Booker error, the Court held that the error was harmless because the district court had issued an identical 70-month alternative sentence in case the guidelines were voided.

Cartwright: Captain need not be sole captain

In United States v. Cartwright, No. 04-13398 (11th Cir. June 24, 2005), the Court (Anderson, Carnes, Pryor), affirmed the 87-month sentence for a defendant who entered a plea of guilty to conspiracy to possess with intent to distribute one thousand kilograms of marijuana and a detectable amount of hashish. Mr. Cartwright and two other men were intercepted by the United States Coast Guard aboard a vessel northeast of Cuba. The Court rejected Mr. Cartwright's contention that the district court improperly enhanced his guidelines sentence under U.S.S.G. § 2D1.1(b)(2)(B) finding that Mr. Cartwright "acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer" of the vessel in question. Mr. Cartwright argued that he was never officially named captain of the vessel and that he had no license or special skill as a captain. The Court rejected the invitation to establish a formal definition of captain or pilot of a vessel and instead noted that Mr. Cartwright's admissions (he was a lifelong fisherman, he drove the boat as it left Jamaica, he was driving the boat when it was intercepted, he followed instructions on where to steer the boat, and he used a compass to navigate) supported the enhancement. The fact that all three men took turns driving the boat on its voyage was immaterial. The Court also ruled that it lacked jurisdiction to review the district court's ruling on his Rule 35 motion which was filed on the same day as his notice of appeal because no independent notice of appeal was filed from the denial of the Rule 35 motion. Finally, on plain error review, the Court held that Mr. Cartwright failed to demonstrate that the Booker error affected substantial rights. [Note: The Court reviewed the Booker error for plain error even though Mr. Cartwright raised a Blakely claim in his Rule 35 motion.]

Mejia: Booker error was harmless

In U.S. v. Mejia-Giovani, No. 04-16138 (July 15, 2005), the Court (Anderson, Carnes, Pryor) held that any Booker error that occurred at sentencing in imposing a middle of the Guideline sentence was harmless, when the sentencing judge stated at sentencing that its patience was running thin with respect to the defendant's pattern of illegal re-entry, and warned of a possible upward departure. "Based on this record, we can say with fair assurance that Mejia-Giovani would not have received a lesser sentence in the absence of statutory [Booker] error."

Pipkins: Levy applied on remand from Supreme Court

In U.S. v. Pipkins, No. 02-14306 (June 20, 2005), the Court reaffirmed its Levy rule, and, on remand from the Supreme Court for further consideration in light of Booker, held that a defendant could not raise a Booker challenge to his sentence for the first time in an en banc rehearing petition.
The Court recognized that prior to the Supreme Court’s decision in Blakely, its caselaw did not support a Blakely-type challenge to a sentence. "Even if our precedent at the time foreclosed their argument, the Defendants still had to raise this issue in their initial brief and assert that our precedent was wrongly decided in order for us to consider it. It is through this process that the law evolves."

Kelley: Bank robbery by intimidation

In U.S. v. Kelley, No 04-13002 (June 16, 2005), the Court (Carnes, Pryor, Forrester b.d.) rejected sufficiency of the evidence challenges to a conviction for bank robbery by "intimidation" in violation of 18 U.S.C. § 2113(a).
No weapon or note was used in the robbery. But the defendant slammed onto the teller counter hard enough that he was heard from another room. One teller was within arm’s length as cash was removed from another teller’s cash drawer. The tellers were so frightened that they failed to activate the bank’s silent alarm. Based on these facts, the Court concluded that the tellers were intimidated.
The Court also rejected the argument that the facts did not establish the taking of money "from the person or presence of another." One bank teller was within arm’s length. This fact "easily satisfied" the statutory element.
Finally, the Court rejected the argument that inconsistencies in the testimony of prosecution witnesses, and the testimony of defense witnesses, made the facts insufficient to sustain the bank robbery conviction. The Court noted that the jury was free to resolve the inconsistency in the government’s favor. Further, the defendant’s employer was unsure whether the defendant was at work on the date of the robbery, and his testimony therefore did not undermine the government’s case.

McGough: Community Caretaker Exception Inapplicable

In U.S. v. McGough, No. 04-12077 (June 15, 2005), the Court (Cox, Edmondson, Birch) held that the "community caretaker" exception to the Fourth Amendment prohibition on warrantless searches of home did not permit police to enter into an apartment without a warrant and without consent. The Court held that the defense motion to suppress the marijuana and firearm found in the apartment should have been granted, and reversed the conviction.
The police arrived at the home in response to a telephone call from the defendant’s scared 5-year old daughter, whom the defendant had locked in the apartment when he went out to buy pizza. The police unlocked the door, placed McGough under arrest for reckless conduct, and called the daughter’s aunt. While outside the apartment, the police noticed a heavy burglar door and a mounted surveillance camera. They asked the defendant for consent to search his home, which he declined. While waiting for the aunt to arrive, the police entered the apartment, ostensibly to help the daughter find some shoes, and found a firearm and marijuana. The police then sought a warrant and seized the marihuana and fiream, and another firearm, and more marihuana.
The Court recognized a "community caretaker" exception to the warrant requirement of the Fourth Amendment. This exception applies when "exigent circumstances" require police to respond to a situation at a home. The Court found no such circumstances in this case. "There was no immediate threat." The daughter’s need for her shoes was not a compelling enough exigency to justify a warrantless entry by police into McGough’s home.
The Court further found that the good faith exception to the exclusionary rule did not apply. This exception applies when a warrant issues after officers engage in "objectively reasonable law enforcement activity." Here, the warrant issued after police engaged in an unlawful entry. "In such a situation, the search warrant affidavit was tainted with evidence obtained as a result of a prior, warrantless, presumptively unlawful entry into a personal dwelling." Consequently, the evidence obtained as a result of the unlawful entry must be suppressed.

Bradshaw v. Stumpf: Inconsistency on triggerman's identity

In Bradshaw v. Stumpf, No. 04-637 (June 13, 2005), the Supreme Court held that a defendant entered into a knowing guilty plea, despite the trial court’s failure to explain the specific intent to cause death element of the aggravated murder charge, when the elements of the crime were explained to the defendant by his competent defense counsel, and where the defendant so confirmed on the record.
The Court rejected the argument that Stumpf’s profession of not having been the triggerman was inconsistent with a knowing guilty plea. The Court noted that under Ohio aider and abetter theory, Stumpf could have been guilty of the offense without being the actual triggerman. The Court also rejected the argument that the plea was involuntary because the prosecution later took the inconsistent position that Stumpf was not the triggerman. The Court noted that the precise identity of the triggerman was irrelevant to the conviction.
The Court recognized, however, that the prosecution’s inconsistent position as to whether Stumpf or his accomplice was the triggerman could have affeced his death sentence. The Court pointed out that the Sixth Circuit’s opinion on this subject was ambiguous, because it focused on the validity of the conviction, not of the sentence. The Court therefore remanded the case for further proceedings to address the question of how the prosecutor’s inconsistent position related to the validity of Stumpf’s death sentence.

Rompilla: Failure to consult court records is ineffective assistance

In Rompilla v. Beard, No. 04-5462 (June 20, 2005), the Supreme Court held that capital counsel’s assistance in the penalty phase was constitutionally ineffective when he failed to examine the material he knew the prosecutor would rely on as evidence of aggravation. Counsel failed to examine the court file on Rompilla’s prior felony convictions – a file which was readily available. This was objectively unreasonable, and counsel’s consultation with the defendant and his family was not a sufficient substitute. The Court held that the lawyer’s lapse prejudiced the defendant, because the court record would have unearthed mitigation leads – such as the defendant’s mental disorders and organic brain damage and childhood problems probably related to fetal alcohol syndrome.

Matthews: 404(b) reversal

In U.S. v. Matthews, 2005 WL 1334341 (June 8, 2005), the Court (Tjoflat, Hill, Granade b.d.) reversed the defendant’s drug-trafficking conviction on the ground that evidence of a prior arrest was erroneously admitted in violation of Fed. R. Evid. 404(b).
At trial, the government relied solely on the testimony of co-conspirators who were testifying in exchange for sentence reductions. These cooperating witnesses testified that Matthews participated in an ongoing drug-trafficking conspiracy, and then obtructed justice by intimidating them while they were in jail, cooperating with the government.
The Court rejected the argument that wiretap evidence should have been excluded because the recordings were not sealed in accordance with 18 U.S.C. § 2518(8)(a). The Court noted that the recordings were sealed within two days of the expiration of the order authorizing interception, and held that this was a reasonable time within the meaning of the statute.
The Court also rejected the argument that one conversation among two conspirators in which Matthews’ name was mentioned should have been excluded because it was not in "furtherance of the conspiracy." The Court found that one could have concluded otherwise.
The Court also rejected the challenge to the sufficiency of the obstruction evidence. "The jury was, of course, free to infer that Matthews was merely passing on along news of [a former conspirator’s] unfortunate demise, reflecting on the fleeting nature of human existence, and sending greetings." But the jury could also have drawn other inferences from the references by Matthews in a letter to a conspirator about another conspirator’s execution when he began cooperating with the government.
Turning to the 404(b) issue, the Court rejected the government’s argument that evidence of an earlier arrest for drug trafficking could be introduced to show the defendant’s "intent" in the instant charged offense. The Court pointed out that the uncontradicted testimony of the cooperating witnesses was that Matthews had participated in significant drug trafficking activities. Had the jury believed these witnesses, intent would not have been at issue. Matthews could not have participated in these activities without the requisite criminal intent. The prior arrest, therefore, was introduced not to show intent, but to buttress the credibility of the cooperating witnesses by showing Matthews’ propensity for drug trafficking. This is precisely what Rule 404(b) prohibits.
The Court found that the error was not harmless, pointing out that the prosecutor relied heavily on the prior arrest in closing argument, as the "glue" that held its witnesses’ stories together.

Henderson: Polygraph evidence can be excluded

In U.S. v. Henderson, No. 04-11545 (Barkett, Farris, b.d.) (Hill dissenting), the Court affirmed a conviction of a police officer for pistol whipping a suspect, rejecting a number of challenges to evidentiary rulings.
The Court rejected the argument that the trial court should not have excluded proffered evidence concerning a witness’ bias. The Court noted that the evidence might not have been properly proffered, but ruled in any event that that the danger of unfair prejudice outweighed the evidence’s probative value.
The Court also rejected the argument that the trial court should have excluded a witness’ testimony about his belief in the credibility of the victim’s account of events. The Court recognized that ordinarily such evidence is inadmissible. However, in this case the government was attempting to respond to questions on cross-examination that attempted to discredit the witness for changing his mind about which person he believed. The evidence was admitted not to bolster the credibility of another witness, but to explain why this witness changed his mind as to who he believed.
The Court agreed with the defendant that the victim’s treating physician should not have been permitted to testify regarding his opinion regarding the cause of the jaw injury. Such questions are in the nature of "hypotheticals" reserved for expert witnesses. However, the Court found the error to be harmless in light of the other evidence of guilt.
The Court upheld the exclusion of evidence of two polygraph exams of the defendant which supported his defense. The Court found the exclusion of this evidence proper under Daubert. The Court noted that the theories of polygraphy could not adequately be tested. Further, the error rate for polygraphs "is not much more reliable than random chance." The exclusion therefore was not an abuse of discretion.
The Court further rejected a challenge to the policy of the Middle District of Florida of excluding police officers from jury venires. The Court noted that enforcement officers compose less than 0.55% of eligible jurors, and noted the significant state interest in having enforcement officers at work, not sitting on juries.
Turning to Henderson’s sentence, the Court found Booker "plain error." The district judge imposed the lowest possible sentence and staetd that she thought the sentence was too high but was bound by the guidelines in any case. In these circumstances, the defendant has met his burden of proving prejudice. The Court remanded the case for resentencing.

Mathenia: Constitutional vs. statutory Booker error

In U.S. v. Mathenia, No. 04-15250 (May 23, 2005) (Black, Carnes, Pryor), the Court affirmed a sentence of a defendant convicted of distributing and receiving child pornography.
The defendant received a 96-month sentence. His Guideline range was 87-108 months.
The Court noted that there are two Booker errors, a "constitutional" error and a "statutory" error. The constitutional error is the use of extra-verdict enhancements to reach a guidelines result. The statutory error is in the use of mandatory guidelines. The constitutional error is reviewed for harmlessness, with the government bearing the burden of showing that the error did not contribute to the defendant’s sentence. The statutory error is reviewed under a less demanding test, where a court determines whether one can say that the error "had but a very slight effect." The Court noted that Mathenia raised a statutory error.
In the instant case, the district court stated at sentencing that it would impose "the same" sentence if the guidelines were just advisory. Under these circumstances, the Court noted, it had previously held that the government met the more demanding constitutional standard. Thus, there was no error under the less demanding statutory error case: the error "had but a slight effect."

Silvestri: Money laundering conviction upheld

In U.S. v. Silvestri, (May 23, 2005), the Court (Black, Marcus, Smith b.d.) upheld the conviction and sentence of a defendant convicted of money laundering the proceeds of an elaborate mail fraud.
The Court rejected challenges to the sufficiency of the evidence. The Court noted that for a the conspiracy counted, the government only had to show that the defendant knew either the insufficiency of the assets of the corporation into which investors were told to invest, or the illegitimate use of investor’s funds. The Court found that the government showed that the defendant "well knew of both aspects of the fraud."
The Court also rejected a sufficiency of the evidence challenge to the convictions for substantive money laundering. The Court rejected the argument that mere deposit of investor funds into bank accounts could not constitute money laundering. The Court recognized the caselaw which holds that money laundering cannot occur until the unlawful activity is completed. The Court pointed out, however, that for mail fraud, the crime is complete before the checks are deposited, as the offense is already complete when the letter containing a false representation is put in the mail.
The Court also rejected the argument that Silvestri should not be held accountable for the acts of co-conspirators for which he lacked knowledge. Citing the Pinkerton doctrine, the Court noted that the government need only show that the co-conspirator’s conduct was "reasonably foreseeable" to the defendant. The Court found that the government met this burden.
The Court rejected a challenge to a jury instruction. Citing the "invited error" doctrine, the Court pointed out that when a lawyer responds to a proposed instruction with the words "the instruction is acceptable to us," such action constitutes invited error. Here, defense counsel expressly accepted the language of the now-challenged instruction.
Finally, citing U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004), the Court rejected a Booker challenge to the sentence, pointing out that the issue was not raised in Silvestri’s initial brief, and was therefore waived.

Gallegos-Aguero: Maximum allowable sentence means no Booker error

In U.S. v. Gallegos-Aguerro, No. 04-14242 (May 18, 2005), the Court (Barkett, Hull, Wilson) held that Booker did not affect the viability of Almendarez-Torres v. U.S., 523 U.S. 224 (1998), and rejected the argument that a judge not make fact-findings concerning a prior conviction in order to enhance by 16 levels a sentence for a defendant convicted of illegal re-entry following a conviction for an aggravated felony. The Court found no Sixth Amendment error.
The Court noted that there was error under the Booker rule that the Guidelines are advisory, not mandatory. This error, however, was harmless. The district judge sentenced the defendant to the longest sentence permitted under his Guideline range, i.e. the maximum allowable. Hence, there was no actual prejudice to the defendant.

Petho: No Booker error where judge said "same sentence" under nonbinding guidelines

In U.S. v. Petho, No. 04-15412 (May 18, 2005), the Court (Barkett, Hull & Wilson) found no Booker error and affirmed a sentence for a defendant convicted of bank robbery.
The defendant had preserved a Booker objection to his sentence in the district court, but the Court found any Booker error harmless. The Court noted that the district court, in imposing a 37-month Guideline sentence, stated that it would have imposed the "same sentence" if the guidelines were non-binding. The Court also noted that there was no Sixth Amendment error because the defendant admitted the enhancing facts – passing a threatening note – at his plea colloquy.

Fields: low end Guideline sentence is not Booker plain error

In U.S. v. Fields, No. 04-12486 (May 16, 2005), the Court (Carnes, Pryor, Forrester b.d.) affirmed the 360-month sentence imposed on a defendant convicted of cocaine trafficking.
The Court rejected the argument that a two-level for firearm possession should not have been imposed. The Court noted that the enhancement applies unless the defendant can show that it was clearly improbable that the firearm was connected with the offense. The firearms were present at locations at which co-conspirators were dealing drugs. The Court noted that one co-conspirator was the defendant’s cousin, in almost daily contact, and this close relationship increased the probability of a connection between the firearm and the narcotics trafficking.
The Court also rejected the argument that a supervisory role enhancement should not have applied because there were less than 5 participants in the offense. The Court counted at least five participants involved.
Finally, the Court found no plain error under Booker. The defendant argued that the third prong of plain error – the probability of a different result under advisory guidelines – was satisfied because the judge imposed a sentence at the low end of the guideline. The Court cited the decisions in four other circuits holding that this alone did not show "actual prejudice" from the sentence. "The fact that the district court went as low as it could under the mandatory guidelines system, without more, is not enough [to show plain error]."

Custer: Booker Error Preserved

In U.S. v. Custer, No. 04-14111 (April 13, 2005), the Court withdrew its earlier pre-Booker published opinion, and entered a decision holding, on harmless error review, that the district court erred under Booker when it imposed Guideline sentence enhancements on a defendant convicted of distribution of child pornography. The Court pointed out that the defendant’s plea agreement did not waive his right to assert a Booker challenge on appeal.

Robles: Booker error is harmless

In U.S. v. Robles, No. 04-13598 (May 10, 2005), the Court held that any Booker error in the sentence enhancements based on "relevant conduct" under the Guidelines was harmless beyond a reasonable doubt, because the district court at sentencing stated that its sentence would be the same if it imposed an alternative sentence under advisory guidelines.
The Court rejected the argument that the error in imposing a Guideline sentence was not harmless because post-Booker a sentencing court could take account of matters not ordinarily relevant, like a defendant’s age. The Court found that the sentencing court’s statements made clear that it did not feel limited in what evidence it could consider. The Court also rejected the argument that the district court could now take account of the factors listed at 18 U.S.C. § 3553(a). The Court was "at a loss" to see how these factors could possibly change the result. The court added that it did not expect a sentencing court post-Booker to conduct an accounting of every § 3553(a) factor and expound on its role in its sentencing decision.

Davis: Booker error not harmless despite departure

In U.S. v. Davis, 2005 WL 1033422 (May 4, 2005), the Court (Anderson, Carnes, Marcus) vacated a sentence and remanded for resentencing consistent with Booker.
Pre-Booker, the defendant objected in the district court, and again in his initial brief on appeal, that the district court’s reliance on drug quantity as a basis for his sentence violated his Sixth Amendment rights. The Court agreed finding that the error was not harmless. The Court rejected the government’s argument that the error was harmless because the sentencing court already departed downward, on the basis of the defendant’s assistance to authorities. The Court noted that under the Guideline departure authority, the district court had not enjoyed "unfettered" discretion, but only discretion within the substantial assistance guideline. The Court said it simply did not know how the district court would have imposed sentence had it known the Guidelines were "advisory," and therefore the government, on harmless error review, could not meet its burden of showing the district court’s error was "harmless."

Williams: no Booker plain error

In U.S. v. Williams, 2005 WL 1058931 (May 6, 2005), the Court (Birch, Black, Pryor) held that the defendant failed to establish Booker plain error in the sentence enhancement for brandishing or possessing a firearm during robberies.
The Court noted that, after the hearing the testimony of witnesses, the district court concluded that the defendant did possess a gun during his robberies, and that the defendant was lying when he denied having possessed a firearm during these crimes. The Court concluded that it was "obvious" from the sentencing transcript that if the case were sent back down, the district court would impose the enhancemnents "again." Similarly, the district court made clear that it would not grant a sentence reduction for acceptance of responsibility, and, again, it was clear that a remand on this issue would be pointless. The defendant, therefore, failed to satisfy the third prong of the Eleventh Circuit’s Booker plain error analysis, i.e., showing that a lower sentence would have resulted had the district court known that the Guidelines were not mandatory.

Crawford: Incorrect advisory Guideline calculation

In U.S. v. Crawford, No. 03-15136 (May 2, 2005) (Edmondson, Marcus, Pryor), the Court reversed a district court’s sentencing finding that a defendant did not engage in more than minimal planning, and reversed a district court’s downward departure based on restitution. The Court remanded the case for resentencing in the advisory manner explicated by Booker.
The Court recognized that Booker had required a "reasonableness" standard on appellate review of sentences. The Court found that this reasonableness standard did not affect appellate review of the application of the sentencing guidelines. The Court noted that Booker requires a district court to "consult" and "take into account" the Guidelines. This "consultation requirement" obliges the courts to calculate correctly the sentencing range prescribed by the Guidelines.
The Court noted that the more than minimal planning Guideline focuses on "repeated acts over a period of time" which indicate greater culpability. The Court recognized a narrow exception for conduct in response to a sudden, fortuitous opportunity of which the defendant took advantage without deliberation. The Court noted that Crawford wrote 184 checks in furtherance of his illegal scheme. He had many opportunities to consider the consequences of his actions, but never ceased participation. Thus, contrary to the district court’s finding, the defendant’s conduct was not the product of fortuity, and the more than minimal planning enhancement applied.
The Court also reversed the downward departure based on restitution and remorse. The Court noted that the district court ruled before it had the opportunity to consider the Court’s extraordinary restitution opinion in U.S. v. Kim. Therefore, on remand, the Court "must apply the Kim test." The Court rejected as a basis for downward departure the use of unsophisticated means: "A defendant who uses unsophisticated means is not to be rewarded for lack of imagination."
Further, because the government had not filed a substantial assistance motion, assistance was not a basis for downward departure.
Finally, the Court recognized that the reliance on the disproportionate amount of loss amount was a valid basis for departure. The Court noted that "the amount of loss appears proportionate to the criminal acts committed by Crawford."
The Court found that the sentence was based on "an erroneous understanding of the Guidelines." The Court instructed the district court to calculate an advisory guideline range that includes more than minimal planning and considers a downward departure in a range consistent with its opinion.

Dacus: Booker plain error where judge would have departed downward

In U.S. v. Dacus, No. 04-15319 (May 3, 2005), the Court held that Booker "plain error" occurred at sentencing when the district stated that if it had the authority to depart downward, it would have done based on Dacus’ rehabilitation efforts.
The Court noted that the defendant failed to raise a Booker challenge in his initial brief, but did not find this was a waiver because of the government’s concession of sentencing error on appeal.
The Court noted that at sentencing, "Dacus did not object to the conclusion of the district court that it was bound by the Guidelines as mandatory." [Note: at the time of sentencing, the Guidelines were mandatory]. The Court therefore reviewed the error for "plain error." Here, the error was "plain," because the district said it would have considered a downward departure but for the mandatory nature of the Guidelines. This showed a reasonable probability of a different result on resentencing. The Court therefore vacated the sentence and remanded for resentencing.

Burge: ACCA prior juvenile convictions count

In U.S. v. Burge, No. 04-13468 (May 2, 2005), the Court (Edmondson, Dubina, Hull) affirmed the constitutionality of a sentence imposed under the Armed Career Criminal Act.
The Court rejected the argument that Burge’s prior conviction under a juvenile charge of burglary in the first degree should not be counted as one of three qualifying prior convictions under ACCA.
The Court first rejected the argument that the prior burglary conviction should not be counted because it could committed in one of three ways under the State statute, and it was unclear which way it was convicted. The Court noted that under Shephard v. U.S., 125 S.Ct. 1254 (2005), a court can consider the charging document, plea agreement or plea colloquy to determine the nature of a prior conviction. Here these documents showed that Burge was adjudicated delinquent for committing first degree burglary while carrying a firearm, and his conviction therefore satisfied ACCA.
The Court also rejected the argument that a prior conviction should not be found by a judge where the prior juvenile proceeding did not involve a jury trial. The Court recognized a circuit split on this issue. The Court sided with the view juvenile adjudications provide "sufficient safeguards" to ensure reliability. Hence, it was permissible for a judge, and not a jury, to make findings about the meaning of the prior conviction.
Finally, the Court found no Booker error in the imposition of a one level enhancement for pointing a gun, finding that the defendant had not shown that a different sentence would result on resentencing.