Dean: Child Pornography Statute Not Overbroad

In U.S. v. Dean, No. 09-16133 (March 16, 2011), the Court rejected challenges to the constitutionality of a statute that makes it unlawful to produce child pornography, 18 U.S.C. § 1466A(a)(2).

Dean relied on the First Amendment “overbreadth” doctrine. The Court noted that a statute will be struck down as overbroad only if the overbreadth is “substantial” relative to its plainly legitimate sweep. Here, while the statute criminalizes some speech that is not child pornography, for example, an “explicit film version of the novel Lolita,” the overbreadth is not “substantial” in relation to the statute’s legitimate reach. The Court noted that the statute requires a showing that the activity lacks “serious literary, artistic, political or scientific value.” Moreover, the materials that would not be not be “patently offensive,” and therefore deserving of First Amendment protection, would not be substantial in relation to materials that would be “patently offensive.” The Court distinguished Ashcroft v. Free Speech Coalition, because the statute at issue in that case had no exception for materials that were non-obscene by reason of their serious literary, artistic, political, or scientific value.

The Court rejected the argument that the statute was not narrowly tailored because the “knowingly” mens rea only referenced the verbs in the statute, not the characteristics of the image that make it unlawful. The Court held that the word “knowingly” refers to the image characteristics listed in the statute.

Turning to the sentence, the Court noted the authorities, including a paper by federal public defender Troy Stabenow, which argue that the Guidelines for child-pornography offenses are overly severe as applied to “the typical downloader of child pornography.” The Court noted that Dean was not a typical downloader, having sexually abused his stepdaughter and filmed hundreds of the episodes of abuse to generate pornographic films.

Jordan: No selective prosecution where defendant did not rely on evidence regarding similarly-situated defendants

In U.S. v. Jordan, No. 10-11534 (March 16, 2011), the Court affirmed a felon in possession of a firearm conviction.

The Court rejected Jordan’s Fourth Amendment challenge to his seizure. The Court noted that Jordan’s encounter with police occurred in an “area known for crime.” Jordan suspiciously became defensive when confronted about walking in the middle of the street, belligerently yelling that he had done nothing wrong. One police officer saw a gun-shaped bulge in Jordan’s pocket. Jordan fled, and was then chased and seized. His seizure in these circumstances did not violate the Fourth Amendment.

The Court rejected Jordan’s argument that his prosecution as an armed career criminal was “selective” and therefore unconstitutional. Jordan pointed out that African-Americans account for approximately 93% of ACCA prosecutions in the Northern District of Georgia, even though they account for significantly less than this number in the population of convicted felons who carry firearms. The Court noted that Jordan did not include the criminal histories of the other defendants, and therefore failed to establish how “similarly-situated” defendants were affected.

Finally, citing binding precedent, the Court rejected Jordan’s claim that 18 U.S.C. § 922(g)(1) exceeded Congress’ power under the Commerce Clause.

Gamory: Life Sentenced for Drug Dealer

In U.S. v. Gamory, No. 09-13929 (March 11, 2011), the Court affirmed drug trafficking and money laundering convictions, and a sentence of life imprisonment.

The Court rejected Gamory’s argument that he was wrongly denied a Franks hearing regarding the falsity of an affidavit that supported an application for a search warrant. The Court explained that even if the statement in the affidavit was false, there other evidence that supported probable cause for the warrant.

Reviewing the issue for “plain error,” the Court rejected the challenge to the district court’s admission of a rap video during the trial. The Court recognized that it was error to admit the video in evidence, because the lyrics contained violence and profanity, and was not clearly probative of Gamory’s guilt. Moreover, a reference to “hush money” in the video was hearsay, because the government claimed that it was introduced for its truth, i.e. that the “hush money” evidenced that Gamory was a drug dealer. But the error in admitting the video was harmless, because of other evidence, including testimony from several of Gamory’s co-conspirators, corroborated by surveillance, and drug ledgers.

The Court rejected Gamory’s Batson challenge to jury selection, finding that the prosecutor gave race-neutral reasons (e.g. one juror had difficulty reading) that the defendant failed to rebut.

Jackson: Rule 32 does not apply to revocation hearings

In U.S. v. Jackson, No. 10-13019 (Feb. 24, 2011), the Court affirmed a 21-month sentence imposed on a revocation of supervised release.

The Court held that Fed. R. Crim. P. 32(i)(1)(A), which requires a district court to verify at sentencing that the defendant and the defendant’s attorney have read and discussed the presentence report, does not apply to probation office reports prepared for a revocation hearing. Therefore, the district court’s failure to so verify during Jackson’s revocation hearing was not in error.

The Court rejected Jackson’s substantive reasonableness challenge to the length of his sentence, noting that he had not shown how a lesser sentence would help his “anger management problem.”

Schmitz: Error to ask "Were-they-lying" questions

In U.S. v. Schmitz, No. 09-14452 (March 4, 2011), the Court reversed convictions for theft concerning a program receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(A), but affirmed mail fraud convictions obtained against an Alabama state legislator who collected $177,000 in salary for a federal program but did little or no work.

Reviewing the issue for plain error, the Court found that it was “error” for the prosecution to repeatedly ask the defendant, on cross-examination, whether prosecution witnesses were “lying” when they testified to matters inconsistently with the defendant’s version of events. The Court held that “were-they-lying?” questions are improper for four reasons.

First, “were-they-lying” questions are not permitted by the Federal Rules of Evidence. They ask a witness to testify about matters beyond the witness’ personal knowledge.

Second, “were-they-lying” questions usurp the jury’s role as the sole maker of credibility determinations.

Third, “were-they-lying” questions put the defendant in a no-win situation of either accusing another witness of lying, or undermining his own version of events.

Fourth, the predominant purpose of the questions is to “make the defendant look bad.”

The Court recognized that in some circumstances a “were-they-lying” question might be appropriate, for example, when the defendant opened the door to such a question by testifying on direct about the truthfulness of another witness.

The error in Schmitz’ case was not “plain” because this was a matter of first impression in the Eleventh Circuit.

Turning to the indictment, the Court held that the counts charging § 666 thefts should have been dismissed, because the government neglected to allege any facts supporting these charges. The Court rejected the argument that the facts alleged in the mail fraud counts could be incorporated into the § 666 counts. The Court noted that each count of an indictment is treated independently, unless it incorporates another count by express reference, which the indictment here failed to do.

The Court found sufficient evidence to support the mail fraud counts, noting that the jury could reasonably infer that three letters Schmitz mailed were in furtherance of her fraudulent scheme to obtain pay for a job at which she did nothing.

Rose: Unpresented mitigation evidence not sufficient for habeas relief

In Rose v. McNeil, No. 10-11848 (March 4, 2011), the Court denied habeas relief to a Florida death row inmate sentenced to death for a 1982 murder, rejecting an argument that defense counsel was ineffective for failing to investigate and present mitigation evidence at the penalty phase of Rose’s trial.

The Court found it unnecessary to address counsel’s performance, because the ineffectiveness claim could be disposed by examining whether Rose suffered any “prejudice” as a result of the failure to introduce certain mitigation evidence.

The Court noted that much of the mitigation evidence Rose argued should have been presented at his trial would have been duplicative of evidence that was presented.

The non-duplicative evidence was “weak.” For example, the evidence of organic brain damage showed “minimal” damage. Evidence of Rose’s childhood was “double-edged” as it would have brought out Rose’s “violent” past.

In sum, the unpresented mitigation evidence did not undermine the Court’s confidence in the outcome.

Almanzar: District Court Usurped Role of Jury

In U.S. v. Almanzar, No. 10-11481 (March 4, 2011),the Court found that the district court usurped the role of the jury by granting a motion for a judgment of acquittal, after the jury gave a guilty verdict that convicted a defendant of methamphetamine trafficking.

The case involved a woman, Almanzar, who was stopped with her brother, an illegal immigrant, in a truck which contained sealed packages containing methamphetamine. The district court granted a judgment of acquittal based in part on its view that a Hispanic woman would trust blindly her male sibling. But that information was never presented to the jury. Moreover, the jury weighed the evidence, and made the credibility determinations. Sufficient evidence was presented to support the conviction.

Naranjo: Sufficient Concealment for Money Laundering

In U.S. v. Naranjo, No. 08-13814 (March 2, 2011), the Court affirmed concealment money laundering convictions.

The Court rejected the argument that the government failed to prove “concealment.” The Court pointed out that while Naranjo signed the checks from his fraudulent companies, he tried to conceal his association with the bank accounts on which the checks were drawn. “It is irrelevant that Naranjo left enough evidence to allow a novice investigator to trace these cash withdrawals to Naranjo . . . because the statute requires only that proceeds be concealed, not that they be concealed well.” The Court also noted that large cash withdrawals are more difficult to trace than funds transferred between accounts.

The Court dismissed as “at best, speculative” Naranjo’s claim that a state report on his companies was exculpatory and therefore should have been turned over as Brady material. The Court noted that Brady does not require federal prosecutors to disclose Brady material possessed by state investigators.

The Court also rejected Naranjo’s Due Process and Confrontation Clause challenge to the admission of summary chart evidence. The Court noted that summary charts are admissible where (as here) the supporting evidence was previously presented to the jury, the court has made it clear that the jury decides what weight to give the summary, and the defense has an opportunity to cross-examine a witness concerning any disputed issue. The Confrontation Clause challenge failed because the data summarized was admissible under the business records exception to hearsay, and was not subject to exclusion under the Confrontation Clause.

San Martin: Two week lateness bars death row inmate's petition

In San Martin v. McNeil, No. 09-14311 (Feb. 23, 2011), the Court rejected as untimely the federal habeas petition filed by a Florida inmate sentenced to death for a 1991 murder.

San Martin filed his federal habeas petition two weeks after the one-year deadline of AEPDA. He argued that the limitations period should be equitably tolled, because of a two-week delay in his receipt of the decision of the United States Supreme Court that started the period running. Rejecting this argument, the Court noted that San Martin waited 349 days after receipt of the Supreme Court order before filing his state post-conviction claim. The Court also noted that, to invoke equitable tolling, a petitioner must show diligent attempts to ascertain the status of his case – which San Martin failed to do.

Julian: 924(j) does not require consecutive sentences

In U.S. v. Julian, No. 09-13673 (Feb. 22, 2011), the Court vacated a sentence and remanded for resentencing, because the district court erroneously concluded that it was required by statute to impose consecutive sentences, and lacked discretion to impose concurrent sentences.

Julian pled guilty of several offenses, including a violation of 18 U.S.C. § 924(j), which makes it a crime for a person, in the course of a violation of 18 U.S.C. § 924(c) (use of a firearm during a crime of violence or a drug trafficking offense), to cause the death of a person. At sentencing, the district court concluded that § 924(c)(1)(D)(ii) required it to impose a consecutive sentence of life for the § 924(j) violation. Reversing, the Court held that the district court could impose a concurrent punishment for the § 924(k) violation.

The Court noted that the language of § 924(c) with regard to consecutive sentences referred to “this subsection,” i.e., 924(c), not 924(j). Further, the placement of the “cause of death” provision in a separate subsection of the statute indicated that it was a separate offense, not a sentencing enhancement. Further, the considerable increase in punishment for causing the death of a person indicated that the provision created a separate offense. In addition, the government itself treated causing death as something it had to prove to obtain a conviction, because this fact increased the statutory maximum, thus confirming that the provision was more than a sentencing enhancement. The Court recognized conflict with two other Circuits, but found those opinions unpersuasive.

Lockley: Florida "Attempted Robbery" is "Crime of Violence"

In U.S. v. Lockley, No. 09-15728 (Feb. 11, 2011), the Court held that a prior conviction for “attempted robbery,” in violation of Fla. Stat. §§ 812.13(1) and 777.04(1) qualified as “crime of violence” for purposes of the career offender Guideline.

The Court noted that the career offender guideline expressly includes “robbery,” which refers to “generic” forms of robbery. The Court found that Florida’s “attempted robbery” offense is a generic form of robbery. The statute requires that a defendant take the money or property of another, with the intent to permanently deprive the person of it, using force, violence, or threats of force. The Court found that the “intimidation” element of the statute was generic.

The Court noted that Florida’s attempt statute, which requires that a “substantial step” be taken toward commission of the offense, falls within the generic meaning of “attempt” in the Guidelines.

The Court further noted that “attempted robbery” would also qualify under the “residual clause” of the career offender Guideline. The Court noted that attempted robbery is similar in degree to the offenses enumerated in the residual clause. Robbery is purposeful, and it is a potentially aggressive and violent act. The Court noted the difference between “robbery” and Florida’s lesser offense of “robbery by sudden snatching.”

Ibarquen-Mosquera: DTVIA is Constitutional (Part 2)

In U.S. v. Ibarguen-Mosquera, No. 09-14476 (Feb. 10, 2011), the Court rejected challenges to the constitutionality of the Drug Trafficking Vessel Interdiction Act (DTVIA).

The Court rejected a challenge based on international law principles, noting that these principles only apply to laws that govern the conduct of flagged vessels, whereas the DTVIA applies to stateless vessels.

The Court rejected the argument that the terms “semi-submersible vessel” and “intent to evade” were void for vagueness. The Court found that the application of both terms to defendants was clear: “Defendants traveled in a Vessel that sat very low in the water, was painted ocean-blue, and had no headlights or signals.”

The Court also rejected the argument that the conspiracy and substantive offenses were double punishment for the same offense, noting that conspiracy involves “collaboration” to violate the statute while the substantive offense does not.

The Court ruled that the statute does not require that a defendant “knowingly” navigate on the high seas. The high seas element was merely a jurisdictional element of the statute.

Saac: DTVIA is Constitutional (Part I)

In U.S. v. Saac, No. 09-14204 (Feb. 9, 2011), the Court upheld the constitutionality of the Drug Trafficking Vessel Interdiction Act of 2008 (DTVIA). The defendants were convicted under the DTVIA of operating a semi-submersible vessel in international waters.

The Court rejected the argument that the defendants’ unconditional guilty pleas waived their right to challenge the constitutionality of the DTVIA on appeal. The Court ruled that the constitutionality of a criminal statute to which a defendants pleads guilty is a jurisdictional issue that a defendant does not waive upon pleading guilty.

The Court rejected the argument that the “High Seas” clause of the Constitution, which vests Congress with power to define crimes on the High Seas, requires that the crime have a connection with the United States. The Court noted that drug trafficking is condemned universally by law-abiding nations.

Turning to sentencing, the Court found that, in the absence of a promulgated Guideline at the time of sentencing with respect to submersible vessels, the district court did not err in declining to impose sentence based on the Guideline governing tunnels and subterranean passages. The district court did not abuse its discretion in finding the tunnel guideline insufficiently “analogous” for sentencing purposes.

The Court rejected the argument that a sentence was excessive because the alien-defendant would not be eligible for certain vocational programs. The Court noted that the sentence was well below the statutory maximum.

Lee: Conspiracy not "Crime of Violence"

In U.S. v. Lee, No. 10-10926 (Feb. 2, 2011)

the Court held that a prior New Jersey conviction for conspiracy to commit armed robbery did not qualify as a “crime of violence” for purposes of the Guidelines career offender enhancement, but a prior New Jersey conviction for eluding police did so qualify.

The Court noted that it had previously held that a non-overt act conspiracy is not a “crime of violence” for career offender purposes. New Jersey’s statute criminalizing conspiracy to commit armed robbery did not require an overt act. It therefore did not qualify as a “crime of violence.”

As for the eluding police conviction, the Court noted that the offense involves a motorist who “knowingly” flees after receiving a signal from law enforcement, in a flight that “creates a risk of death or injury to any person.” The Court found that such a motorist poses a danger to himself, other drivers, passengers, pedestrians and law enforcement officers. The Court concluded that fleeing at high speed amounts to holding a finger on the trigger of a deadly weapon. The offense therefore qualified as a crime of violence..

Preacher: Abandonment not applicable defense to using interstate facility for murder

In U.S. v. Preacher, No. 10-10492 (Jan. 28, 2011), the Court held that an abandonment defense was not available for the offense of using a facility of interstate commerce with the intent that a murder for hire be committed.

Preacher used a cell phone to contact someone with the idea of hiring someone to commit murder. Preacher later got scared and “cancelled the deal.” Nevertheless, the offense of using a facility of interstate commerce was complete. The defense of abandonment therefore was not available to Preacher. The Court affirmed his conviction.

McDaniel: Child pornography possessor proximately causes harm

In U.S. v. McDaniel, No. 09-15038 (Jan. 28, 2011), the Court affirmed a judgment of restitution in favor of a victim of child pornography.

The Court noted that although the defendant did not create the child pornography in which the victim was pictured, he possessed the pornography, and was therefore part of the market that supported the creation of this pornography.

The Court noted that in order to recover restitution from a defendant, a victim must show that the defendant was the “proximate cause” of her monetary damages.

The Court found that McDaniel, though not the creator of the pornography that pictured the victim but only a possessor, nonetheless proximately caused the “slow acid drip” of trauma that exacerbated the victim’s emotional issues. The Court therefore affirmed the $12,750 restitution order.

Shannon: Purchase is not Possession

In U.S. v. Shannon, No. 10-10599 (Jan. 26, 2011), the Court held that a prior conviction for the purchase of cocaine in violation of Florida law did not qualify as a “controlled substance offense” for purposes of “career offender” status under the Guidelines.

The Court noted that the Florida statute encompassed different conduct, but because the record before the district court did not indicate the statutorily prohibited act for which the defendant was convicted, the Court was required to assume that his act was the “least prohibited act,” i.e., “purchase.”

The Court rejected the government’s argument that purchase of cocaine was equivalent to “possession” of cocaine. The Court noted that the Florida statute distinguished between “purchase” and “possession.” In addition, the career offender Guideline referred to possession, not purchase.

Jerchower: Amendment 732 was Clarifying Amendment

In U.S. v. Jerchower, No. 09-13795 (Jan. 25, 2011), the Court held that Amendment 732 was a “clarifying amendment” and therefore retroactively applicable.

Amendment 732 provides that the “undue influence” enhancement for defendants convicted of prohibited sexual conduct does not apply when the only “minor” was an undercover law enforcement officer.

The Court noted that substantive guideline amendments do not apply retroactively (unless the Sentencing Commission expressly so provides pursuant to USSG § 1B1.10(c)), while clarifying amendment do apply retroactively, and are available to defendants whose cases are on appeal.

In concluding that Amendment 732 was clarifying and not substantive, the Court noted that Amendment 732 resolved a Circuit conflict on whether the “undue influence” enhancement applied in cases where the minor who was the “victim” was in reality a law enforcement officer (Amendment 732 overruled Eleventh Circuit precedent which had held that the enhancement applied in such cases). In addition, Amendment 732 amended a Guideline commentary, not a Guideline. Further, the Commission’s explanation of the reason for the amendment made clear its clarifying nature. Amendment 732 clarified a meaning inherent in the original Guideline.

The Court held that Amendment 732 applied to Jerchower retroactively, and remanded the case for resentencing.

Diaz: Involuntary Medication to Render Defendant Mentally Competent for Trial

In U.S. v. Diaz, No. 09-15421 (Jan. 12, 2011), the Court affirmed a district court’s grant of permission to medicate a defendant involuntarily in order to render him mentally competent to stand trial.

After reviewing at length the expert reports regarding Diaz’s schizophrenia, and statistical studies regarding the effectiveness of medication, the Court found a “substantial likelihood that anti-psychotic medication will restore Diaz to competency,” and that this medication “is not substantially likely to cause side effects that would interfere with Diaz’s ability to assist counsel.” The Court credited expert opinions that side effects “easily can be controlled with supplemental medication.” The Court also noted that if the side effects could not be controlled, Diaz would be switched to another treatment regimen.

The Court rejected Diaz’s argument that the government made only “token” efforts to take his medication voluntarily. The Court noted that Diaz had refused medication since 2008. The Court further noted that psychotherapy is not an effective alternative to treat schizophrenia in the absence of medication, because schizophrenia is caused by a biological condition, a chemical imbalance.

Diaz: Freedom qualified as "thing of value"

In U.S. v Townsend, No. 09-12 (Jan. 13, 2011), the Court affirmed convictions of a Miami-Dade County corrections officer, convicted for giving a defendant on pretrial release greater freedoms in exchange for bribes.

The Court found that giving greater freedom to a defendant on pretrial release qualified as a “thing of value of $5,000 or more” for purposes of the bribery statute, 18 U.S.C. § 666. The Court held that a thing of value can be “intangible.” Further, because the monetary value of the bribes paid to Townsend totaled $5,280, the value of this intangible (the defendant’s greater freedom) exceeded $5,000.

The Court rejected sufficiency of the evidence challenges to Townsend’ remaining convictions for obstruction of justice, finding that phone calls Townsend made to the defendant to warn him of a pending search of his home, and other evidence, proved these violations.

Ruff: Appeal Waiver is valid

In U.S. v. Ruff, No. 09-16304 (Jan. 5, 2011), the Court dismissed an appeal because the defendant signed an appeal waiver in connection with his guilty plea.
The Court noted that appeal waivers are enforceable if they are knowing and voluntary. Here, Ruff understood the full significance of his appeal waiver.
The Court noted two exceptions to Ruff's appeal waiver: the imposition of a sentence above the statutory maximum, or an upward departure. Because Ruff pled guilty to, inter allia, possession of a firearm in relation to a drug trafficking crime, an offense for which the statutory maximum was life, and to possession of firearms as a convicted felon, which also carried a maximum of life because Ruff qualified as an armed career criminal, and because his sentence was 19 years, Ruff’s sentence did not exceed the statutory maximum.
The Court rejected Ruff’s argument that the erroneous imposition of a consecutive sentence resulted in an upward departure, and therefore was not subject to his appeal waiver. The Court noted that Ruff’s sentence was below the Guideline range, and therefore was not an upward departure. The Court added that Ruff’s consecutive sentence challenge was now foreclosed by the Supreme Court’s 2010 decision in Abbott v. U.S

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Harvey: Not Ineffective to concede client's guilt?

In Harvey v. Warden, No. 08-15868 (Jan. 6, 2011), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for 1985 murders.
The Court found that Harvey’s defense counsel was not constitutionally ineffective in failing, during jury selection, to strike a juror for cause, or peremptorily, once the juror admitted that based on news accounts of the defendant’s confession she believed he was guilty. The Court noted that it would not presume that counsel failed to consult with the defendant on this point, nor that counsel was ineffective. The Court noted that counsel could reasonably have believed that in light of overwhelming evidence of guilt, the focus should be on the penalty phase, for which this juror might be reasonably receptive to arguments to spare the defendant’s life.
The Court recognized that the Supreme Court’s precedent could be read to presume prejudice when defense counsel, as Harvey’s counsel did, concedes his client’s guilt at trial without first consulting the defendant on this strategy. But the decision could also be read to make consent irrelevant. Accordingly, Harvey failed to show that the Florida Supreme Court’s application of Supreme Court caselaw was unreasonable. The Court found no actual prejudice in counsel’s tactical concession of guilt, in light of the overwhelming evidence.
The Court found that counsel’s "good person" strategy in the penalty phase was not constitutionally deficient on account of an inadequate investigation of the defendant’s past history, noting that counsel called 16 personal-history witnesses in Harvey’s defense.
Finally, the Court rejected the argument that counsel inadequately investigated Harvey’s mental history. The Court found that counsel was not unreasonable in relying on his expert’s advice that Harvey suffered from no organic brain damage. The Court noted the absence of a "smoking gun" that might have alerted counsel that his expert’s view was mistaken.

Mejia: "Conviction" under Immigration law

In Mejia v. U.S. Dep’t of Homeland Security, No. 09-14273 (Jan. 4, 2011), the Court held that a prior guilty plea, followed by a finding of guilt and a sentence of time served, in Florida court, qualified as a prior “conviction” for purposes of the immigration laws. Consequently, Mejia, an alien, was ineligible from protection from removal from the United States.

The Court recognized that no formal punishment was imposed. However, a finding of guilt, coupled with a sentence for time served, qualified as a “conviction,” because these two together brought finality to the case and constituted an “adjudication.” Moreover, there was no indication that adjudication had been withheld.

The Court recognized that under Florida law, a sentence of time served is not a sentence. However, federal law, not Florida law, controlled the inquiry. Under federal law, time served qualifies as a sentence.

Gonzalez: Confrontation Clause Error Was Harmless

In Gonzalez v. Sec. Fla. Dep’t of Corrections, No. 09-15599 (Jan. 3, 2011), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1992 murder.

The Court did not reach the issue whether Gonzalez’ post-collateral motion in Florida State Court was “properly filed” for purposes of tolling the federal habeas statute of limitations, and instead denied the petition on the merits.

The Court rejected the argument that the Confrontation Clause error in admitting at trial the confession of Gonzalez’ non-testifying co-defendants was not harmless error. The Court agreed with the Florida Supreme Court that in light of Gonzalez’ own confession, and other evidence, the error in admitting this evidence was harmless.

The Court also rejected the argument that the Florida state courts erroneously disallowed two of Gonzalez’ peremptory challenges. The Court noted that the Supreme Court has held that entitlement to peremptory challenges is a matter of State law, and that there is no constitutional right to peremptory challenges. Consequently, the erroneous denial of a peremptory challenge cannot establish a constitutional violation.

Nix: Resisting Arrest with Violence is "Violent Felony"

In U.S. v. Nix, No. 09-15335 (Dec. 30, 2010), the Court adopted its unpublished opinion in U.S. v. Hayes, and held that a prior Florida conviction for resisting an arresting officer with violence, in violation of Fla. Stat. § 843.01, qualifies as a “violent felony” of purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). The Court therefore found that Nix had the requisite three prior felony convictions and affirmed the 15-year sentence.

Gowdy: Violation of federal detainer is "escape"

In U.S. v. Gowdy, No. 09-15999 (Dec. 27, 2010), the Court held that, even though the defendant was never in federal prison, but only subject to a federal detainer after his federal conviction and sentencing, he could still be guilty of “escape from custody” under 18 U.S.C. § 751(a).

Gowdy was mistakenly released from State custody, at a time he was subject to a federal detainer to serve a federal sentence. Gowdy contended that his failure to turn himself in did not constitute “escape.”

The Court noted the “broad scope” of § 751(a), which reaches non-violent walkaways and failure to report for incarceration, or to return to custody. Here, Gowdy was in “constructive” federal custody by virture of a process issued under the laws of the United States by a federal district court. It did not matter that he was not “physically confined in an institution at the time of escape.”

Rodriguez: Unauthorized Access of Computer

In U.S. v. Rodriguez, No. 09-15265 (Dec. 27, 2010), the Court affirmed a conviction for unauthorized accessing of a computer database, in violation of 18 U.S.C. § 1030(a)(2)(B).

Rodriguez was an employee of the Social Security Administration who made unauthorized use of Social Security computer databases to obtain personal information about persons he knew. The defendant claimed that his conduct did not violate the statute because he did not use the data for financial gain, or to commit a crime. The Court rejected the argument, pointing out that the (misdemeanor) statute criminalizes the unauthorized accessing of databases, and does not require financial gain, or commission of a crime.

Rodriguez also challenged the upward variance he received as unreasonable. The Court found that a variance was warranted by the number of victims and the extensive nature of Rodriguez’ unauthorized access.

Powell: District Court Must Hold Live Hearing to Reverse Magistrate Judge Credibility Determinations

In U.S. v. Powell, No. 09-11612 (Dec. 27, 2010), the Court vacated a conviction because the district judge declined to adopt a Magistrate Judge’s report and recommendation without holding a hearing.

Powell moved to suppress statements he made following his arrest, claiming that he was not read his Miranda rights after he requested counsel. A Magistrate Judge held an evidentiary hearing. After hearing the conflicting testimony of government and defense witnesses, the Magistrate Judge credited the defense accounts, and found the government’s witnesses “unconvincing.” The Magistrate Judge recommended a ruling in favor of Powell’s motion to suppress. The government filed objections with the district court. The district court, without holding a hearing, but after listening to a recording of the hearing before the Magistrate Judge, overruled the Magistrate Judge, and denied the motion to suppress.

The Court held that when a district court squarely rejects the credibility findings of a Magistrate Judge, it must hear the disputed testimony live. The Court therefore vacated Powell’s conviction, and remanded the case. The Court noted that the district court remained free to reject the Magistrate Judge’s determinations in whole or in part after holding a new hearing.

Pilati: SORNA Registration is based on conduct

In U.S. v. Pilati, No. 09-11978 (Dec. 17, 2010), the Court held that an Alabama District Attorney defendant convicted of depriving persons of their civil rights, in violation of 18 U.S.C. § 242, by fondling genetalia during searches, including a search of a minor, could be required to register as a sex offender under SORNA.

The Court first noted that because Pilati had consented to trial by jury presided over by a Magistrate Judge, after the jury convicted he waived all issues that he did not appeal to the district court pursuant to 18 U.S.C. § 3402.

With regard to the SORNA registration issue, the Court noted that the SORNA registration requirement applied based on the nature of the conduct underlying an offense, not based on whether the statute of conviction was a civil rights violation or a sex offense. Here, the unobjected-to facts were that Pilati’s conduct involved a sex offense against a minor. SORNA registration could therefore be required.

Cone: Non-parties lack standing in criminal case

In U.S. v. Cone, No. 09-13824 (Dec. 17, 2010), the Court held that once the district court vacated its preliminary order of forfeiture, non-parties to the criminal proceeding lacked standing to challenge the district court’s vacatur of the order of forfeiture. The Court noted that once the district court vacated the forfeiture order, nothing remained at stake in the criminal case for the non-parties, and they therefore lacked standing. The Court therefore dismissed the appeal, for lack of jurisdiction.

Digsby: Appellate Counsel Not Ineffective

In Digsby v. McNeil, No. 09-10978 (Dec. 7, 2010), the Court affirmed the denial of habeas relief to a Florida inmate who claimed that his appellate lawyer was ineffective for failing to raise a collateral estoppel claim in his state direct appeal.

At a first trial, Digsby was acquitted of aggravated battery. At a second trial involving the same incident, Digsby was convicted of unlawful firearm possession. Digsby claimed that his appellate lawyer was ineffective in failing to argue on appeal that because the jury that acquitted determined that Digsby never possessed a firearm, collateral estoppel barred his conviction for firearm possession arising out of the same incident.

The Court found, however, that while the jury that acquitted might have found that Digsby did not possess a firearm, it did not “necessarily” so find. The jury might have concluded that the firearm accidentally went off, while in Digsby’s possession, and therefore acquitted him of aggravated battery. If so, Digsby would have nonetheless possessed the firearm – and been liable for unlawful firearm possession. His appellate counsel was therefore not ineffective in failing to raise this claim on direct appeal.

Williams: "Incredible" story warrant obstruction of justice enhancement

In U.S. v. Williams, No. 09-10091 (Dec. 8, 2010), the Court agreed with the government that the district court erroneously declined to impose a sentence enhancement for obstruction of justice, and erroneously granted an acceptance of responsibility sentence reduction.

The Court Williams testified at trial that he did not know that he had rammed the vehicle of U.S. Marshals who had come to arrest him on pending charge, and believed that the Marshalls were carjackers. The Court noted that the jury “for good reason” had rejected Williams’ “incredible” testimony. An obstruction of justice enhancement was therefore warranted.

The Court also ruled that Williams was not entitled to an acceptance of responsibility reduction, because he had gone to trial, put the government to its proof, and insisted he was innocent in the face of overwhelming evidence to the contrary.

Gooden: District Court Failed to give recharacterization notice

In Gooden v. U.S., No. 09-10499 (Dec. 8, 2009), the Court held that the district court improperly dismissed Gooden’s motion to compel a reduction of sentence for substantial assistance. The district court had dismissed the motion on the ground that it was an untimely 28 U.S.C. § 2255 motion, and was an unauthorized “second and successive” motion. Prior to this motion, the inmate had filed a “motion to modify” his sentence, which the district court had recharacterized as a § 2255 motion. However, in so recharacterizing the inmate’s motion, the district court failed to give the inmate notice of the recharacterization and its adverse consequences on future § 2255 motions, as required by Castro v. U.S., 540 U.S. 375 (2003). Because of the district court’s initial failure to give notice of recharacterization, it could not now dismiss Gooden’s latest motion for being second or successive. The Court rejected the government’s argument that notice of recharacterization need not be given when a motion is untimely. The Court explained that future events can render a § 2255 motion timely, and that the notice is therefore necessary to alert a defendant to his options.

Puatti: Joint Penalty Phase Was Appropriate

In Puiatti v. McNeil, No. 09-15514 (Nov. 29, 2010), the Court denied habeas relief to a Florida death row inmate convicted of a 1983 murder.

The Court rejected the argument that Puiatti was denied an individualized sentencing determination because the jury considered whether to impose a death sentence on him along with his co-defendant. The Court noted that Puiatti and his co-defendant presented “similar” mitigation theories. The Court added that in this case a joint penalty phase was “particularly appropriate” because the defendants committed the murder together.

Forey-Quintero: Defendant is Alien, Not a Citizen

In U.S. v. Forey-Quintero, No. 09-15330 (Nov. 30, 2010), the Court affirmed a conviction for unlawful re-entry into the United States, in violation of 8 U.S.C. § 1326(a). The sole issue in the case was whether Forey-Quintero could not guilty of this offense because he previously had acquired derivative citizenship by virtue of his mother’s naturalization when he was under the age of 18. The Court found that because Forey-Quintero did not have lawful permanent resident status at the relevant time under the applicable immigration statute, he did not acquire derivative citizenship, but was an alien, and therefore was guilty of unlawful re-entry.

Turner: Affirming 300-month sentence for child pornography possession

In U.S. v. Turner, No. 09-15074 (Nov. 17, 2010), the Court affirmed a 300-month sentence imposed on a defendant convicted of receiving child pornography, in violation of 18 U.S.C. 2252(a)(2), and possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

The Court rejected the argument that the five-level enhancement for engaging in “a pattern of activity involving the sexual abuse or exploitation of a minor” should not have applied. The Court noted that Turner molested a very small child, and was convicted of first degree sexual abuse in 1990. The Court noted that the Guideline did not require a connection between the past sexual abuse and the current offense. Here, the evidence established a pattern because Turner abused the child “numerous times.” The fact that the sexual abuse was remote in time did not preclude it from being a basis for the USSG § 2G2.2(b)(5) enhancement.

The Court also found the sentence to be substantively reasonable. The 300-month sentence was a 90-month variance above the high end of the Guidelines. The Court noted that the offenses were “extremely serious” because receiving and possessing child pornography encourages the victimization of children. But cf., e.g., U.S. v. Grober, __F.3d __ (3rd Cir. Oct. 26, 2010) (affirming downward variance to 60 months, for child pornography offender; district court reasonably concluded that 235-292 Guideline range lacked empirical justification); U.S. v. Dorvee, 616 F.3d 174 (2d Cir. 2010) (reversing 240-month sentence for child pornography offender, because Guidelines lack empirical support).

The Court also noted that Turner “poses a more serious threat to society than many child pornography defendants given his history of actually abusing a small child and the increased recidivism of child sexual abusers.

Davis: No Authority to Issue COA

In Davis v. Terry, No. 10-14534 (Nov. 5, 2010), the Court denied a request for a certificate of appealability (COA) from a district court’s denial of a request for a COA. The Court noted the case’s procedural history: after the Court had denied an application to file a second or successive habeas petition, after the Supreme Court, exercising original habeas jurisdiction over Davis’ petition in the Supreme Court, had transferred the case to district court to conduct an evidentiary hearing on Davis’ claim of innocence, and after the district court held a hearing and denied relief, Davis sought a COA to appeal the district court’s ruling. The Court held that because, after its original denial of a COA, there was no further review provided by law, it had no authority over his application.

Lambrix: Denial of Application for Second or Successive Habeas Petition

In In re Lambrix, No. 10-14476 (Oct. 26, 2010), the Court denied the application of a Florida death row inmate, convicted of a murder that occurred in 1983, for leave to file a second or successive habeas corpus petition.

The Court noted that the standard for a second or successive petition was a showing that facts could not have been discovered earlier, and that, but for a constitutional error, no reasonable factfinder would find the defendant guilty. Lambrix relied on the recantation of one of the prosecution’s witnesses. The Court noted that the recantation could have been discovered earlier, and that reasonable factfinders could still have found Lambrix guilty. The Court found Lambrix’s other allegations to similarly lack merit.

Wayerski: Child Pornography Conspiracy Conviction Duplicative

In U.S. v. Wayerski, No. 09-11379 (Oct. 26, 2010), the Court held that convictions of defendants for both engaging in a child exploitation enterprise, in violation of 18 U.S.C. § 2252A(g), and in a child pornography conspiracy, in violation of 18 U.S.C. § 2252A, were unduly duplicative, in violation of Double Jeopardy, but otherwise affirmed all convictions.

To avoid unconstitutional duplicativeness, a criminal conviction must involve proof of a fact that another conviction does not involve. Here, the “in concert” element of the exploitation enterprise offense involved the same proof of agreement that the conspiracy offense involved. Therefore the two convictions were duplicative. The Court therefore vacated the conspiracy convictions and remanded for resentencing.

The Court, however, rejected a vagueness challenge to the child exploitation statute. The Court noted that the statute, which criminalizes commission of several enumerated child pornography felonies, on three or more separate instances, involving more than one victim, in concert with three or more other persons, squarely applied to the defendants elaborate and secret scheme for using the internet to share images of child pornography. The Court noted that one to whose conduct a statute squarely applies may not successfully challenge it for vagueness. Thus, the Court found unpersuasive the defendants’ hypothetical that one could violate the statute in a manner of seconds by exchanging images over the internet.

Turning to sentencing, the Court rejected the argument that, because the defendants’ conduct in avoiding detection occurred before arrest, an obstruction of justice enhancement should not have been imposed. The Court pointed out that the obstruction of justice enhancement covers conduct that occurred prior to arrest, and prior to the start of an investigation.

The Court rejected one defendant’s argument that the district court erred in finding that he posed a risk to the community if released from prison, because a defense psychologist testified otherwise at sentencing. The Court noted that the district court relied on other evidence, including the defendant’s diaries, which the psychologist may not have reviewed. The Court found that the 360 and 365 months sentences imposed on two defendants were not excessive, noting the “harm caused by caused by child pornography offenses.”

Mateos: Medicare Fraud Convictions and Sentences Affirmed

In U.S. v. Alvarez, No. 08-17178 (Oct. 19, 2010), the Court affirmed Medicare fraud convictions and sentences.

The Court agreed with defendant Alvarez that the district court erred when it excluded a recorded statement made by one Medicare conspirator to Alvarez that “there’s no fraud whatsoever here” – a statement that indicated that Alvarez was not privy to the scheme. The statement was not hearsay, because Alvarez did not seek to admit it for its truth, but to show that Alvarez was not aware of the fraud. It therefore did not matter whether, as the district court found, the statement did not fit within a hearsay exception, because the statement was not hearsay in the first place.

However, the error in excluding the recorded statement was harmless because the statement was effectively admitted through witness testimony.

The Court found no error in the district court’s admission of evidence that co-defendant Mateos had been married to a ringleader of the fraud. The Court did not find this evidence so “inflammatory” as to render the district court’s cautionary instruction ineffective.

Turning to sentencing, the Court found that the 30-year sentence imposed on Alvarez was not outside the range of reasonable sentences. The Court recognized the “troubling” disparity with lesser sentences imposed on more culpable co-conspirators. However, these defendants provided substantial assistance to the government. In addition, the Court found that the district court’s reasons for an upward variance were justified: Alvarez was a doctor who breached her position of trust; the fraud lasted over a period of months; Alvarez followed a lower standard of care with regard to the health of her patients; Medicare fraud was rampant in the Miami area; Alvarez “blatantly lied” during her testimony at trial and showed “no remorse.” In addition, Congress recently amended the Sentencing Guidelines for Medicare fraud, and under the new Guidelines Alvarez’ 30-year sentence fell at the high end of the Guidelines.

The Court rejected Mateos’ argument that the district court erroneously found her responsible for the entire intended loss (more than $9 million). The evidence showed that Mateos was aware of the essence of the fraud, and the district court therefore held her responsible for losses stemming from all reasonably foreseeable acts of coconspirators.

Kobal: Absence of brain damage evidence did not warrant habeas relief

In Kokal v. Sec. Dep’t of Corrections, No. 08-11722 (Oct. 18, 2010), the Court denied habeas relief to a Florida inmate sentenced to death for the 1983 murder a sailor.

The Court rejected Kobal’s argument that his lawyer was ineffective for failing to conduct an investigation that would have revealed Kobal’s brain damage. The Court found that the Florida Supreme Court, in previously balancing the aggravating and mitigating factors, had not weighed the factors unreasonably in concluding that Kobal was not prejudiced by the lack of evidence of brain damage. The Court noted the “heartless” nature of the murder, and that, even had Kobal presented evidence of brain damage (which the Court found weak), he would also have presented evidence of his substance abuse on the night of the crime, a two-edged sword.

Sistrunk: Entrapment is affirmative defense to felon in possession charge

In U.S. v. Sistrunk, No. 09-12798 (Oct. 7, 2010), the Court affirmed a conviction for being a felon in possession of a firearm.

Citing U.S. v. Deleveaux, the Court recognized that, like the defense of justification, the defense of entrapment can be raised in a felon-in-possession case, as an affirmative defense, to negate criminal liability even though the prosecution has proven all the elements of the offense. The district court therefore erred in ruling that this defense was not available to Sistrunk. However, the error in failing to give the instruction was harmless because the facts did not warrant the instruction: the government merely presented Sistrunk with an “attractive” opportunity to rob a stash house, but did not engage in “excessive pressure or manipulation.”

Gomes: FSA does not apply to pre-FSA case

In U.S. v. Gomes, No. 10-11225 (Oct. 1, 2010) (Tjoflat, Barkett, Fay), the Court held that the district court committed no error when it imposed the then-applicable statutory mandatory minimum of 120 months on a defendant convicted of trafficking in more than 50 grams of crack cocaine. The Court found that the recently enacted Fair Sentencing Act, which increased the crack cocaine quantities required to qualify for this statutory mandatory minimum punishment, did not change the result, because the Act took effect after the defendant committed his crime, and the saving clause, 1 U.S.C. § 109, bars the Fair Sentencing Act from affecting the punishment.

Bauder: Ineffective Misadvice on civil commitment consequences

In U.S v. Bauder, No. 10-10657 (Sept. 13, 2010), the district court affirmed the grant of habeas relief to a Florida inmate convicted of aggravated stalking. Prior to his plea, Bauder's state lawyer told him that he could not face involuntary civil commitment under Florida law. This was misadvice: after Bauder finished his sentence on the plea, the State moved to have him committed and he was then committed. The Court found that counsel's advice was ineffective assistance, and that it was prejudical.

Williams: gunshot in public housing project is basis to pull over quickly exiting vehicle

In U.S. v. Williams, No. 10-10612 (Sept. 13, 2010), the Court held that a police officer did not violate the Fourth Amendment when he pulled over the defendant’s vehicle after it quickly pulled out of a public housing project, known to be a high crime area, from which the officer had just heard a gunshot. The district court therefore did not err in declining to suppress the firearm found in Williams’ vehicle.

The Court relied on cases in the Fifth and Tenth Circuits which held that a police officer was acting on more than a “hunch” in like circumstances. In such circumstances, an officer has a reasonable suspicion to pull over the vehicle – sufficient reason under Terry v. Ohio to withstand a Fourth Amendment challenge.

Darling: Denial of Certificate of Appelability

In Darling v. Sec. Dep’t of Corrections, No. 10-13408 (Sept. 14, 2010), the Court denied a certificate of appealability to a Florida death-row inmate. The Court noted that a certificate of appealability is not available to appeal a district court’s denial of habeas corpus relief unless the petitioner shows that reasonable jurists could debate the decision.

Here, the prosecutor’s potentially erroneous closing argument suggestion that certain mitigating factors could require imposition of the death penalty was cured by the trial court’s instructions on this point.

In addition, though Darling claimed counsel was ineffective for failing to put on mitigating evidence about his background, evidence on this point was “inconclusive.”

Finally, although Darling argued that the Vienna Convention was violated when Florida failed to contact the Bahamian Embassy upon his arrest, the Court found no authority indicating that such a violation could invalidate an otherwise valid conviction and sentence.

Because reasonable jurists could not debate these points, Darling did not qualify for a certificate of appealability.

McGill: Possession of Shotgun not "Violent Felony"

In U.S. v. McGill, No. 09-14167 (Sept. 8, 2010), on a government appeal, the Court held that a defendant’s prior Florida State conviction for unlawful possession of a short-barreled shotgun did not qualify as a prior “violent felony” for purposes of the 15-year mandatory minimum 18 U.S.C. § 924(e)(1), the Armed Career Criminal Act (ACCA).

The Court noted that Begay governed whether the prior conviction qualified as a “violent felony.” The question therefore was whether possessing an outlawed short-barreled shotgun is “roughly similar, in kind as well as degree of risk posed, to burglary, arson, extortion and the unlawful use of explosives.” The Court noted that, like explosives, short-barreled shotguns are regulated by the National Firearms Act (NFA). The Court pointed out that ACCA referred to the “use” of explosives, not mere possession, as a qualifying offense. The Court reasoned that if Congress required the “use” of explosives, not mere possession, as a qualifying ACCA offense, it would also intend to require the “use” and not the mere possession of a short-barreled shotgun, another NFA-regulated weapon. The Court concluded that McGill’s possession of a short-barreled shotgun did not qualify as a “violent felony.”

Rainier: Service Station Burglary Counts as Violent Felony

In U.S. v. Rainier, No. 09-14014 (Aug. 31, 2010), the Court held that a defendant’s two prior Alabama burglaries each qualified as a “violent felony” for purposes of his sentence enhancement under the Armed Career Criminal Act (ACCA).

The Court agreed with Rainier that his prior Alabama third-degree burglary was not a “generic burglary” because Alabama defined this offense to include burglary of a vehicle, aircraft or watercraft – whereas a generic burglary involves the burglary of a building. However, under the “modified categorical approach,” a prior non-generic burglary can still qualify as a violent felony if certain record documents established that the crime involved the burglary of a building. Here, the charging documents showed that Rainier burglarized a service station and a shoe store. Thus, the offenses involved a building, and therefore qualified as violent felonies.

Di Pietro: Immigration Marriage Law Not Void for Vagueness

In U.S. v. Di Pietro, No. 09-13726 (Aug. 27, 2010), the Court affirmed a conviction for aiding and abetting individuals to enter into marriage for the purpose of evading federal immigration laws, and rejected constitutional challenges to 8 U.S.C. § 1325(c).

The Court rejected a void for vagueness challenge to the law, pointing out that Di Pietro conceded that the law was not vague as it applied to her. She could not challenge the law as it applied to others. The Court recognized that certain First Amendment “overbreadth” challenges can be raised by one person for others. Here, however, Di Pietro was raising a void for vagueness challenge, and her arguments did not implicate sufficiently “weighty” concerns for others to support her going forward on her challenge.

The Court also rejected the argument that the immigration law unconstitutionally preempts Florida’s marriage law. The Court noted that, to the extent there was a conflict, federal law would invalidate state law. Moreover, there was no conflict: the federal law was like other criminal laws that involve the use of legal means for illegal purposes.

Zaldivar: Alien Smuggling Enhancement for Death on Board

In U.S. v. Zaldivar, No. 09-12035 (Aug. 24, 2010), the Court affirmed a ten-level sentence enhancement for a defendant convicted of alien smuggling, based on the death of one of the aliens.

The alien died as a result of injuries sustained when the boat he was on was being chased by a Coast Coard cutter on the high seas. The defendant stated that he was not the person who operated the boat when it was fleeing from the Coast Guard, and that he requested the driver to stop for the Coast Guard. The Court noted that the relevant conduct for the offense included all “foreseeable” actions that could result in death. The Guidelines do not require that an individual’s actions be the proximate cause of the death. Here, the death was foreseeable because Zaldivar participated in the illegal transportation of 32 Cubans in an overcrowded boat that was designed to travel at high rates of speed. The boat did not contain enough life preservers for all its passengers. It was traveling in the dark, without headlights, to avoid detection. Weather conditions on the open seas have the potential to deteriorate. It was foreseeable to Zaldivar that the operator of the boat would attempt to evade interdiction by fleeing at a high speed.

The Court also found that Zaldivar had not established that he was entitled to a sentence reduction based on his claim that he was involved in alien smuggling for a reason “other than for profit.” The Court noted that Zaldivar’s family was not on the boat, and that aliens who were on the boat stated that they expected to pay for the trip.

Johnson: Counsel not ineffective in failing to call prison expert

In Johnson v. Upton, No. 09-16090 (Aug. 23, 2010), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1994 murder.

The Court rejected the claim that counsel was ineffective for failing to call a penological expert who would have testified, at the penalty phase of Johnson’s trial, that, statistically inmates who serve long prison sentences (instead of being sentenced to death) do not present a future danger because of their tendency to adjust to prison life. The Court found that evidence of Johnson’s own history of having attacked a jailer, and escaped, would undermine the expert’s testimony. Moreover, the statistical evidence was not conclusive. Further, it would have assumed that Johnson would be classified as a high security inmate, a fact unhelpful in mitigation.

The Court also found that any of the claimed ineffective assistance would not have prejudiced Johnson in the penalty phase, in view of the particularly gruesome nature of the murder, and Johnson’s subsequent assault when he escaped from jail.

Bellizia: Ineffective Counsel for Failing to argue heroin was not weighed

In Bellizia v. Dep’t of Corrections, No. 09-13838 (Aug. 20, 2010), the Court affirmed the grant of habeas relief to a Florida inmate because his defense counsel was constitutionally ineffective in failing to challenge the State’s failure to weigh each of the pellets of heroin found on Bellizia..

The Court noted that under Florida caselaw, which had been controlling law for many years, visual examination of drug packages is insufficient to determine the weight of the package. The State must weigh and test every package. Here, the State failed to weigh the drugs and Belizia was sentenced to a 22-year term based on an estimate of the weight of the drugs. No competent counsel would have failed to argue that the weight was illegally calculated.

Chirino-Alvarez: Alien Smuggler Participated Throughout

In U.S. v. Chirino-Alvarez, No. 09-11317 (Aug. 23, 2010), the Court rejected sufficiency of the evidence challenges to alien-smuggling convictions.

Citing the Ninth Circuit’s en banc decision in U.S. v. Lopez, the Court recognized that the evidence would be insufficient if Chirino-Alvarez’ participation in the alien-smuggling scheme occurred only after the aliens arrived in the United States. However, the Court found that based on the evidence, including admissions to an undercover agent, the jury could reasonably infer that Chirino-Alvarez “was involved in the scheme throughout.”

The Court declined to reach Chirino-Alvarez’ challenge to the Guideline computation of his sentence, noting that he was sentenced to a statutory mandatory minimum, and that any error in the Guideline calculation was therefore harmless.

Kottwitz: Good Faith Reliance Instruction Should Have Been Given

In U.S. v. Kottwitz, No 08-13740 (Aug. 19, 2010), the Court held that the evidence was insufficient to sustain some tax fraud charges, and that a new trial was required on others because the district court denied a special instruction regarding the defendants’ good faith reliance on their accountant’s advice.

The Court found that the evidence was sufficient to show that the owners of a closely held corporation fraudulently failed to report to the IRS as personal income moneys received from their corporation to pay for personal expenses, such as suits, night-club visits, and landscaping fees. However, as to this conduct, the district court erred in not failing to give the good faith reliance instruction requested by the defense, because it was supported by evidence that the defendants (1) provided all material information to their accountant, (2) and relied on their accountant’s advice and decisions.

As to other counts of conviction, the Court found no evidence to support them, and therefore vacated those convictions.

Newman: Taking Child to Yemen Not "Otherwise Extensive" Offense

In U.S. v. Newman, No. 09-14557 (Aug. 17, 2010), the Court affirmed the imposition of a sentence enhancement under USSG § 2J1.2(b)(2) for “substantial interference with the administration of justice.” Newman was convicted of removing his child outside the United States with the intent to obstruct the other parent’s lawful exercise of parental rights. The enhancement was based on Newman’s “self-help” reaction in response to a state court custody order. The Court rejected the argument that this basis created a “per se rule” that the enhancement would apply in all custody cases where an order has issued. It is the nexus between Newman’s dissatisfaction with the custody determination and his intent to frustrate it, not the order itself, that renders the enhancement applicable.

The Court reversed a § 2J1.2(b)(3) enhancement that had been based on a finding that because Newman took the child to Yemen, the offense was “otherwise extensive in scope, planning, or preparation.” The Court noted that nothing in the record supported a finding that Newman took his son to Yemen because it would be difficult to find him there. Rather, the evidence indicated that Newman went to Yemen for “religious and cultural reasons.”

The Court also rejected the argument that the duration of the removal counted as “extensive.” The Court held that “duration” is a separate aspect of an offense from “scope.”

Villarreal: 10-year delay not speedy trial violation

In U.S. v. Villarreal, No. 09-11348 (Aug. 13, 2009), the Court rejected a constitutional speedy trial right challenge to an indictment, and affirmed a 328-month sentence on a defendant convicted of trafficking in more than 10,000 kilograms of marijuana.

The Court recognized that because the defendant was arrested ten (10) years after the indictment was filed, the delay was “clearly” presumptively prejudicial. However the Court found that (1) Villarreal engaged in evasive tactics to impede the government’s efforts to arrest him, although this factor did not weigh heavily in the government’s favor because of “gaps in the government’s efforts to locate Villarreal,” (2) Villarreal knew that the government was seeking to arrest and prosecute him for charges stemming from a Florida drug bust, (3) Villarreal failed to show actual prejudice from the delay – he did not show how missing business records would help his case, and the government suffered prejudice in locating witnesses for trial. On balance, the factors weighed against a speedy trial violation.

Turning to sentencing, the Court found that the witnesses who testified about marijuana purchases from Villarreal supported the quantity attributed to him. The evidence also supported a leadership role enhancement, and an enhancement for constructive possession of a firearm. The 328-month sentence fell within the Guideline range and was reasonable.

Jackson: 3582(c)(2) does not encompass safety-valve

In U.S. v. Jackson, No. 08-13645 (Aug. 9, 2010), the Court held that a defendant cannot obtain a safety-valve sentence reduction at a resentencing under 18 U.S.C. § 3582(c)(2).

The Court noted that the safety-valve statute references findings “at sentencing.” A § 3582(c)(2) proceeding is not a “sentencing,” but a limited resentencing. The Court noted the policy statements of the Sentencing Guidelines which provided that § 3582(c)(2) resentencings leave other guideline application decisions “unaffected.”

The Court recognized that its holding created a conflict with the contrary decisions of the Eighth and Sixth Circuits, which have held that the safety-valve does apply in § 3582(c)(2) proceedings.

Epps: Pillowcase not protected by Fourth Amendment

In U.S. v. Epps, No. 09-12285 (Aug. 6, 2010), the Court rejected a Fourth Amendment challenge to the police’s seizure of the contents of a pillow case.

The defendant was running away after a bank robbery, pointing a gun toward the police. A police officer in a police car stopped him by hitting him with the front of his patrol car. The defendant rolled off the car’s hood and the gun and pillow case he was holding “went flying.” The pillow case had some pink stains – suggestive of the dye pack that had stained cash stolen during a bank robbery. The police searched the pillow case and found, inter alia, currency marked with a red dye.

The Court found no Fourth Amendment violation in the search of the pillow case. The Court noted that the pink stains were indicative of an exploding dye pack. The Court found that the contents of the pillow case could be inferred from its outward appearance, and therefore fell outside the ambit of Fourth Amendment protection.

The Court found no improper vouching in the prosecutor’s statement during closing argument that “somebody else” – a witness who had not testified -- was present with the testifying police officer when Epps confessed to police.

Epps: No Fourth Amendment Protection for I

Mills: Mandatory Minimum Crack Offenders Not Eligible for Crack Amendment Reductions

In U.S. v. Mills, No. 08-11760 (Aug. 5, 2010), the Court rejected the argument that defendants convicted of a crack cocaine offense who were originally subject to mandatory minimum sentences, but received substantial assistance sentence reductions below the mandatory minimums, could, in a proceeding for reduction of sentence under 18 U.S.C. § 3582(c)(2), get the benefit of the Sentencing Commission’s 2007 amendment to the crack cocaine Guidelines.

The Court reasoned that the defendants were ineligible for the Guideline amendments, because their original sentences were based on the statutory mandatory minimum. The Court noted that in U.S. v. Moore it had held that career offenders were categorically ineligible for the Guideline amendment reductions. Further, in U.S. v. Williams, it had held that a defendant was ineligible for the Guideline amendment reductions because he was sentenced to a mandatory minimum under the drug statute, based on his two prior convictions. The Court rejected concerns about the “arbitrariness” of its result: “To the extent that defendants believe that . . . the Guidelines led to ‘arbitrary’ results in their cases, their redress is with Congress and the mandatory minimum sentences for drug offenses it has set.”

Irey: En Banc reversal of child molester sentence

In U.S. v. Irey, No. 08-10997 (July 29, 2010) (en banc), the Court reversed as substantively unreasonable a sentence of 210 months, below the Guidelines advisory sentence (and statutory maximum) of 360 months, because the district court failed to adequately punish a sex offender convicted of coercing minors to engage in sexually explicit conduct outside the United States, in violation of 18 U.S.C. § 2251(c).

The Court noted that, contrary to other Circuits, it found no “parsimony principle” in 18 U.S.C. § 3553(a)’s instruction to impose a sentence “sufficient, but not greater than necessary,” to achieve the listed sentencing purposes. The Court stated that the statute is “result neutral.”

The Court noted that the government did not appeal any of the district court’s findings of fact. The Court therefore assumed that these findings were correct. But if found a number of legal errors in the district court’s weighing of the sentencing factors.

The Court faulted the district court for stating that Irey was a “victim” when he was a predator. This finding “tainted its weighing of the § 3553(a) factors.”

The Court also faulted the district court for stating that pedophilia was an illness, noting that just as there is a line between alcoholism and driving under the influence, there is a line between pedophilia and child molestation. The district court erred in reducing Irey’s sentence because Irey’s offense was only partly volitional, and this error warranted “closer review” of the sentence.

The Court also faulted the district court for relying on a finding that Irey was a good family man, and good to his community. The Court equated this to finding that Ted Bundy was a valuable member of his community, and that “but for his taste for human flesh and how he satisfied it, Jeffrey Dahmer was not so bad.” The Court noted that Irey’s family support for him, while admirable, was not supported by the record. The Court also faulted the district court for relying on Irey’s age, finding his age no different from those of other persons in middle age convicted of serious crimes.

The Court also noted the “horrific” nature of the multiple crimes, pointing out that the 210 months sentence would amount to only 4 months and a week punishment for each of the 50 children Irey raped, sodomized or tortured.

The Court pointed out that the 210 months was just 30 months more than Irey would have received had he been convicted of taking a single obscene photograph of a minor.

Turning to deterrence, the Court faulted the district court’s “idiosyncratic doubts” about whether pedophiles could be deterred from committing crimes. The Court noted these views conflicted with the policy judgments of Congress. The Court added that age, for this offense, did not reduce the risk of recidivism.

The Court noted that the district court imposed a lifetime of supervised release, but stated that supervised release does not offer the level of protection of incarceration.

The Court noted that the Guidelines sentence was life, reduced to 30 years on account of the statutory maximum. The Court further noted a number of Guideline provisions that counseled against sentence reductions based on some of the factors the district court cited, for example, the instruction not to depart downward on account of diminished capacity when the offense is violent. The Court found that the district court “ignored” the advisory Guidelines, contrary to § 3553(a) instruction that they be considered.

Turning to sentencing disparity, the Court reviewed a number of cases, and found that Irey’s sentence fell below sentences for other child sex offenders. The disparity resulted from the fact that Irey received a reduction that he should not have received.

The Court disagreed with the district court that its sentence would promote respect for the law. “Nothing less than the advisory guidelines sentence of 30 years, which is the maximum available, will serve the sentencing purposes set out in § 3553(a).”

Tome: One-year internet ban affirmed

In U.S. v. Tome, No. 09-16486 (July 27, 2010), on review of a revocation of supervised release, the Court upheld the imposition of a 24-month sentence and a one-year internet ban as a condition of additional supervised release.

The defendant, after admitting to possession of computer disks containing over 100,000 images of child pornography and being convicted of possessing child pornography, was released on supervised release. While on supervised release, Tome violated his conditions by, inter alia, sending a letter to an inmate graphically describing having sex with children, falsely denying internet usage, and associating with persons convicted of child pornography offenses. In addition, the probation officer stated that during his sex offender treatment sessions Tome was “lacking in motivation, defensive and arrogant.” The Court found that the district court acted within its discretion in imposing the maximum 24-month term, and in prohibiting Tome from using the internet for one year. The Court noted that Tome had not established that his “odd jobs” required internet usage.

Hall: Teenager's Confession Not Coerced

In Hall v. Thomas, No. 09-12729 (July 20, 2010), the Court denied habeas relief to an Alabama inmate sentenced to life imprisonment for robbery and kidnaping.

The Court found that Hall, a juvenile, gave a voluntary confession. The Court recognized that Hall’s father was not present when his son was questioned by police, and that Hall claimed his confession was coerced, but noted that Hall’s audiotaped statement showed that he waived his Miranda rights, and indicated no coercion.

The Court also rejected ineffective assistance of counsel claims, pointing out that Hall suffered no prejudice because of the evidence against him, which included his confession.

Belfast: Charles Taylor's son convictions affirmed

In U.S. v. Belfast, No. 09-10461 (July 15, 2010), in an 87-page opinion, the Court affirmed the torture convictions and 1,164-month sentence of the son of former Liberian President Charles Taylor.

The Court rejected the argument that the torture statute, 18 U.S.C. § 2340A, was unconstitutional because its definition of torture swept more broadly than the Convention Against Torture, which authorized the enactment of the statute. The Court noted that the Judiciary is deferential to other Branches on such issues, and found the differences between the definitions immaterial.

The Court also rejected the argument that § 2340A could not apply extraterritorially to acts in Liberia. The Court pointed out that Belfast was a United States citizen, that Congress has the power to regulate the extraterritorial acts of citizens, and that the statute was intended to apply extraterritorially. The Court also found that 18 U.S.C. § 924(c) could apply extraterritorially, because this is an ancillary statute that relies on a separate substantive crime, here the substantive crime of torture.

Turning to evidentiary issues, the Court rejected the argument that a torture victim’s statements were hearsay, finding them admissible both as prior consistent statements offered to rebut a claim of fabrication, or as excited utterances.

The Court found no error in the admission of unredacted medical records containing statements that the victims suffered “abuse” or “torture,” noting that these were statements of “causation” that did not assign fault for the abuse or torture.

The Court found no error in the admission of rap lyrics found in a notebook in the defendant’s suitcase, noting that they were adequately authenticated, and probative of the defendant’s commission of atrocities.

The Court rejected the argument that the government should have been compelled to produce then-classified Justice Department “Torture Memos.” The Court found these documents “irrelevant” to the defense, since the acts charged in the case were not similar to those described in the Torture Memos.

Turning to the sentence, the Court found that the kidnaping and murder enhancements were supported by the evidence, and that the district court was authorized to consider this evidence.

Snipes: Tax Evasion Convictions and Sentence Affirmed

In U.S. v. Snipes, No. 08-12402 (July 16, 2010), the Court affirmed tax evasion convictions and a three-year sentence.

The district court’s denied a venue transfer motion pursuant to 18 U.S.C. § 3237(b), because the motion was filed after this statute’s 20-day deadline. The Court rejected the argument that Fed. R. Crim. P. 12(c), which authorizes district courts to set deadlines for pretrial motions, supersedes § 3237(b)’s deadline.

The Court rejected the argument that the district court should have held a hearing to decide whether venue was proper. The Court noted that venue is an element of a charge, which must be decided by a jury, not a district court. The Court rejected the argument that constitutional rights were at stake in the venue question, and therefore should be resolved pre-trial, pointing out that, unlike exclusionary rule rights, the Sixth Amendment right to have venue proven as an element of the offense “is safeguarded by integrating it into the trial.”

The Court affirmed the district court’s refusal to instruct the jury regarding Snipes “good faith reliance on the Fifth Amendment.” The Court noted that the district court gave adequate instructions regarding good faith, and pointed out that the Fifth Amendment reliance was not related to the counts of which Snipes stood convicted.

Turning to sentencing, the Court rejected the argument that USSG § 2T1.1 is invalid because a misdemeanor is a less serious offense. The Court noted that the Guidelines provide graduated tax evasion penalties, depending on the amount of the tax loss, recognizing that major tax evasions are “more serious.”

The Court also rejected the argument that § 2T1.1 was invalid because it was not the product of empirical research. The Court noted that the lack of a empirical research, while a “factor” that can justify a district court’s departure from the Guidelines, does not require wholesale invalidation of a Guideline. Further, § 2T1.1 was created after empirical analysis of sentences for white-collar crimes.

The Court upheld an obstruction of justice Guideline enhancement. The Court found sufficient evidence that Snipes threateningly instructed an employee not to respond to a grand jury subpoena.

Finally, the Court upheld the 36-month sentence’s reasonableness.

Allen: Defendant Can Blame Counsel for His Own Litigation Decision

In Allen v. Sec. Fla. Dep’t of Corrections, No. 09-13217 (July 14, 2010), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1991 murder.

The Court rejected Allen’s argument that the Florida state courts incorrectly failed to consider the errors in his trial cumulatively. The Court noted that the cumulative error issue was briefed in the Florida courts, and Florida law requires courts to consider the cumulative impact of errors.

The Court also rejected Allen’s argument that counsel was ineffective in failing to put on mitigating evidence at the penalty phase of his trial. The Court pointed out that Allen specifically instructed counsel not to present mitigating evidence. “Allen . . . does not have the right to escape the consequences of his own decision not to present any mitigating circumstances evidence by shifting the blame for it to someone else.”

Walker: No Clearly Established Crawford Rights In Civil Commitments

In Walker v. Hadi, No. 09-15701 (June 4, 2010), the Court held that, in a habeas proceeding challenging a Florida civil commitment order classifying Walker as a sexually violent predator, Walker could not show error based on the violation of his right to cross- examine witnesses, under Crawford v. Washington, because it is not “clearly established” that Crawford rights exist in civil commitment proceedings.

The Court noted that AEDPA bars relief for habeas petitioners unless they can show an unreasonable application of “clearly established” law as determined by the Supreme Court. However, to date the Supreme Court has not addressed whether Crawford protections, which exist in criminal proceedings, also exist in civil commitment proceedings. Thus, the state court which denied Walker Crawford protections did not violate “clearly established” law.

Fontenot: Government Need Only Prove Federal Investigative Jurisdiction

In U.S. v. Fontenot, No. 08-12266 (July 13, 2010), the Court, on plain error review, held that it was not erroneous, in a prosecution for making a false entry in a document with the intent to impede an investigation within the jurisdiction of a United States agency, in violation of 18 U.S.C. § 1519, to instruct the jury that the government is not required to prove that the defendant knew that his conduct would obstruct a federal investigation.

Fontenot was a corrections officer who falsified information in a report regarding an assault on an inmate.

The Court noted that there can be no “plain” error if there is no precedent from the Supreme Court or the Eleventh Circuit resolving the issue. Here, no such precedent addressed the issue whether the government is required that the defendant knew that his conduct would obstruct a federal investigation. Thus, Fontenot could not show that any error was “plain.” The Court noted legislative history for § 1519 which indicated that the government is only required to prove that the investigation in question fell within federal jurisdiction.

Thompson: Manifest Injustice Standard applies to nonpreserved sufficiency challenge

In U.S. v. Thompson, No. 08-13658 (July 8, 2010), the Court rejected sufficiency of the evidence challenges to multiple convictions of robberies and for using firearms in the course of those offenses.

The Court noted that because, as to certain counts, the defendant failed to move at the close of the government’s case for judgments of acquittal, on appeal the challenge to the sufficiency of the evidence supporting the convictions on those counts was not reviewed de novo, but only for “manifest miscarriage of justice.”

The Court found that the evidence was sufficient, citing the testimony of witnesses who identified the defendant, his gun, and his getaway vehicle.

Garcia-Cordero: "Bring and Present" Requirement does not violate Privilege

In U.S. v. Garcia-Cordero, No. 09-10292 (June 29, 2010), the Court held that 8 U.S.C. § 1324(a)(2)(B)(iii), which imposes a duty on individuals transporting international passengers to “bring and present” those passengers to appropriate immigration officers at a designated point of entry immediately upon arrival into the country, does not violate a defendant’s privilege against self-incrimination.

The Court noted that the “regulatory regime” doctrine permits the government to compel conduct without violating the privilege against self-incrimination. The Court noted that drivers involved in accidents are required to exchange names and addresses with the drivers of other vehicles, and that persons are required to file income tax returns, even when doing so may expose them to criminal charges.

The Court noted that immigration law is properly classified as regulatory rather than criminal. The “bring and present” requirement is part of the federal regulatory scheme through which the government controls the national borders. The requirement therefore did not run afoul of the caselaw that prohibits invasions of privilege when imposed on “highly selective groups.”

Rothenberg: Online chats are basis for sentence enhancements

In U.S. v. Rothenberg, No. 08-17106 (June 29, 2010), the Court affirmed the sentence of a defendant who pled guilty to using a computer to induce an individual under 18 to engage in criminal sexual activity, and to possessing child pornography.

The defendant argued that online chats in which he discussed with adults possible sexual acts with minors should not have been the basis for a sentence enhancement under the Guidelines. The Court found that “a sexually solicitous communication” could constitute a substantial step toward commission of an offense, and therefore qualified for the enhancement. “Rothenberg’s chats were specific instructions to adults with influence over young children; these graphic guides to sexual exploitation showed the adults both how, physically, to molest the children and how, emotionally, to persuade the children to comply with the abuse.”

Vining: Judge's Consultation of Extra-Record Evidence Not Prejudicial

In Vining v. Sec. Dep’t of Corrections, No. 07-15681 (June 28, 2010), the Court denied habeas relief to a Florida inmate sentenced to death for a 1987 murder.

The Court rejected Vining’s argument that he was denied a fair trial because the state trial court considered extra-record information. Applying Brecht v. Abrahamson’s standard of review, the Court determined that any error did not have a substantial effect on the jury’s verdict. The Court noted that none of the extra-record materials that the judge reviewed were presented to the jury, which reached a verdict independent of the judge’s investigation. The Court also noted that the trial judge’s familiarity with hypnosis was irrelevant because of independent evidence that showed that prosecution witnesses were not hypnotized. Finally, at the penalty phase, the jury recommended death, and the judge’s consultation of extra-record information did not affect his decision to impose the jury’s recommended sentence.

The Court also rejected Vining’s ineffective assistance of counsel claims, noting that no reasonable probability existed that the trial would have come out differently.

Marshall: Jury Override Not Arbitrary

In Marshall v. Sec., Dep’t of Corrections, No. 09-15419 (June 28, 2010), the Court denied habeas relief to a Florida death-row inmate convicted of a 1988 murder.

Marshall argued that when the Florida trial court overrode the jury’s recommendation of a life sentence, and sentenced him to death, it violated Florida’s rule limiting such overrides to cases where it was clear that virtually no reasonable person could differ. The Court pointed out that the evidence showed that Marshall did not act in self-defense when he killed another prison inmate. Further, on federal habeas review, the courts ought not “second-guess” a Florida court’s application of its jury-override ruling, but can only overturn if it was arbitrary or discriminatory. Nothing in the record so suggested.

Suggs: No Prejudice in Failure to Present Mental Deficit History

In Suggs v. McNeil, No. 09-12718 (June 24, 2010), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1990 murder.

The Court rejected the argument that the Florida Supreme Court unreasonably applied the prejudice prong of Strickland when it determined that counsel’s failure at the penalty phase to adequately present a defense based on Suggs’ mental health did not prejudice the outcome.

The Court rejected the argument that the Florida courts were not entitled to deference because they compartmentalized the different aspects of prejudice. The Court noted that the Florida Supreme Court stated that it had considered the penalty phase “as a whole.”

The Court recognized that the jury had split 7-5 in favor of death, but found that Suggs had not shown that new evidence of his mental deficit, along with new aggravating evidence, would not have caused a single new juror to vote for life and no new jurors to vote for death. Even in light of the closely divided jury, the evidence of Suggs’ mental deficit would not have changed the outcome, because of he fell “well within the normal range of general intellectual functioning,” and additional evidence of mental history would have opened the door for the State to present evidence of Suggs’ drug and alcohol use. Further, the State would have been able to paint Suggs as a violent, manipulative person.

Huff: Double-Recovery Victim Windfall Not Proper in Restitution

In U.S. v. Huff, No. 08-16272 (June 25, 2010), the Court rejected the argument that the government proved multiple hub-and-spoke conspiracies, not a single conspiracy, but vacated a restitution order.

Rejecting Huff’s conspiracy argument, the Court noted that the evidence showed that the defendants interacted with one another and with their co-conspirators. This was not a case where the conspirators were unaware of others’ activity. Thus, the evidence established a single conspiracy.

The court affirmed the calculation of an $86,938.03 loss amount for sentence enhancement purposes. The Court rejected the argument that the loss amount should be limited by the amount of the kickback the defendant received. The Court noted that the amount of the bribe a defendant receives can be the loss amount, but only if it is not possible to calculate the net benefit of the improper benefit garnered by the defendant. Here, the benefit resulting from the illegal scheme exceeded the amount of Huff’s kickbacks.

Turning to restitution, the Court noted that the district court imposed $86,938.03 in restitution – the same as the loss amount. However, a defendant’s culpability does not always equal the victim’s injury. Further, the district court did not adequately explain how it reached its restitution figure. The Court noted two major ambiguities in the record. First, while some orders placed by the victim were the subject of the fraud, other orders were actually filled – and these orders must be offset against the restitution amount. Second, the restitution amount might have intended to include the kickbacks received by another co-defendant. But restitution is limited to the amount wrongfully taken by the defendant. If restitution was ordered in the co-defendant’s case, this would result in a windfall double-recovery for the victim. The Court therefore remanded for a limited resentencing on the issue of restitution.

Alexander: Firing Firearm from Vehicle is "Crime of Violence"

In U.S. v. Alexander, No. 08-17062 (June 25, 2010), the Court held that a prior conviction under Fla. Stat. § 790.15(2) fo discharging a firearm from a vehicle within 1,000 feet of another person qualified as a crime of violence under the career offender provisions of the Sentencing Guidelines. The Court also rejected Alexander’s challenge to the district court’s refusal to award credit for time served in state custody, noting that this issue must first be raised by administrative challenge to the Bureau of Prisons’ computation of his sentence.

After reviewing Begay and Chambers, the Court noted that courts must use a “categorical” approach to the “crime of violence” issue, looking to the elements of the offense. Here, the offense was more serious than the Florida misdemeanor of merely discharging a firearm in a public place, a distinction that “suggests that this provision targets violent and aggressive conduct, not the mere careless use of a firearm.” Further, the offense posed a serious potential risk of physical injury, because the firing of a weapon poses a risk that a bystander will be injured by a stray bullet. Further, like the enumerated offenses of burglary and arson, the conduct is “purposeful,” even if it does not involve “a specific intent to harm.” Firing a firearm “[m]ore often than not . . . is a violent and aggressive act.” “[A] person who discharges a firearm from a vehicle performs a deliberate act that poses an obvious risk of injury or death to innocent third parties.” The Court analogized the offense to fleeing at high speed or with wanton disregard for safety, conduct which it had held to qualify as a crime of violence in U.S. v. Harris, 586 F.3d 1283 (11th Cir. 2009).

DeYoung: No Habeas relief for 1993 murders

In DeYoung v. Schofield, (09-10964), the Court affirmed the denial of habeas relief to a Georgia death-row inmate for the 1993 murder of his parents and sister.

The Court rejected the argument that DeYoung’s counsel was deficient in failing to investigate his personal history, noting counsel’s investigation of potential witnesses. The Court also rejected the argument that counsel failed to adequately investigate Spencer’s mental health history, noting that Spencer himself had not disclosed to counsel any mental health information.

Finally, the Court noted that DeYoung would have been unable to show prejudice, because of the “carefully planned and premeditated” nature of his murders, and the “study in brutality” in his method of killing.

Williams: Florida Battery does not Qualify for Career Offender

In U.S. v. Williams, No. 08-10184 (June 22, 2010), on remand from the United States Supreme Court in light of Johnson v. U.S., 130 S.Ct. 1265 (2010), the Court held that a prior Florida State conviction for battery on a law enforcement officer did not qualify as a crime of violence for career offender sentencing purposes. The Court noted that battery did not necessarily involve the requisite "physical force." Nor did the factual record so indicate. The Court therefore vacated the sentence and remanded for resentencing.

Gilbert: Career Offender Status Can be a Non-existent offense

In Gilbert v. U.S., No. 09-12513 (June 21, 2010), the Court held that even though a defendant had filed a prior § 2255 challenge to career offender sentencing status, he was entitled to habeas relief based on his claim that his prior conviction for carrying a concealed weapon was no longer an offense that would qualify as a crime of violence, and that he therefore was wrongfully sentenced as a career offender.

At his original sentencing, Gilbert was categorized as a career offender, based in part on a prior conviction for carrying a concealed weapon. At the time, carrying a concealed weapon was a qualifying offense for career offender status. Years later, Begay was decided, and this offense no longer so qualified. However, in the interim, Gilbert had brought an (unsuccessful) § 2255 challenge to his sentence. Consequently, his second habeas challenge could succeed only if (1) his claim was based on a retroactively applicable Supreme Court decision, (2) circuit law squarely foreclosed Gilbert’s claim at the time he first brought it, and (3) Gilbert was convicted for a nonexistent offense. The government conceded the first two points.

The Court concluded that Gilbert was was in effect convicted for a nonexistent offense when he was sentenced as a career offender. The Court stated that Gilbert was in jail today because he was found guilty of the “‘offense’ of being a career offender.” Drawing a parallel to death sentencing cases, the Court found that Gilbert was “actually innocent” of the aggravating factor – violent prior felonies – that were the basis for his career offender sentence. The Court noted: “The animating principle underlying the writ of habeas corpus is fundamental fairness.”

Lall: Defendant's Statements Involuntary: Suppressed

In U.S. v. Lall, No. 09-10794 (May 28, 2010), the Court held that a defendant did not make a voluntary waiver of his Miranda rights, and that his statements were involuntary. Because the government’s uses at trial of the statements and of the evidence derived from the statements were not harmless, the Court reversed the defendant’s conviction.

After giving Lall his Miranda warnings, a police detective told him that any information he shared with police would not be used to prosecute him. Lall then showed the detective the equipment he used to commit identity theft and explained how each device worked. Later, Lall was asked to come to the police station, and told again that he was not going to be charged “with any of this.” Lall gave another incriminating statement.

The Court held that, even if Lall was not in “custody” for Miranda purposes, the statements he gave were involuntary because the police “explicitly assured Lall that anything he said would not be used to prosecute him.”

Turning to the second confession at the police station, the Court rejected the government’s claim that Lall had waived his objection to its admission, noting that the district court’s ruling to exclude it was “enough to preserve the issue.” The Court held that the second confession was also the product of “improper promises of non-prosecution.”

The Court ruled that the identity theft equipment should have been suppressed, because the police “did not have the slightest clue” that this equipment was incriminating until Lall said so.

The Court found that the error in admitting the evidence at trial was not harmless, citing the prosecution’s own concession during closing argument to the jury: “Folks, if none this [physical evidence] were here, none of this, and if Lall’s statements were not before you, I would tend to agree with defense counsel [that it’s] not a real strong case for the government.”