Nelson: Honest services statute not void-for-vagueness

In U.S. v. Nelson, No. 12-11066 (March 13, 2013) (2-1), the Court rejected a void-for vagueness challenge to the constitutionality of the honest-services mail fraud statute, and affirmed convictions of mail fraud and bribery of a former member of the Board of the Jacksonville, FL Port Authority.




The Court noted that although Nelson was not paid for his work as a JaxPort board member, he was indisputably a “public official.” He agreed to represent the interests of a private firm that had business with JaxPort in exchange for monthly payments routed through a middleman. This was a “classic” bribery and kickback scenario. Nelson could not complain about vagueness.



The Court also rejected Nelson’s challenge to jury instructions, finding that his counsel agreed to the wording of one instruction and therefore waived the issue, and that the other properly directed the jury to look to Nelson’s state of mind.



The Court also rejected the argument that the district erred, under Fed. R. Evid. 403, in admitting testimony that one year prior to the charged bribery, Nelson met with JaxPort’s CFO and asked that a contractor be terminated and noted that a rival contractor was “ready to go.” The Court noted that the evidence corroborated parts of the government’s case.

Kuhlman: Chiropractor's sentence "substantively unreasonable"

In U.S. v. Kuhlman, No. 11-15959 (March 8, 2013), on a government cross-appeal of a sentence, the Court held that a sentence of probation and community service was “substantively unreasonable,” for a chiroptractor convicted of health care fraud involving close to $ 3 million.




. The advisory Guideline range was 57 to 71 months. After Kuhlman made full restitution of the close to $ 3 million he stole, and performed community service, the district court sentenced him to probation for time served. The Court found that this sentence failed to served the need for general deterrence, an important factor because health care “is so rampant that the government lacks the resources to reach it all.” The Court cited three of its precedents – Livesay, Martin and Crisp – which held that sentences for white collar defendants were too lenient and therefore “outside the range of reasonableness.” The Court added: “The Sentencing Guidelines authorize no special sentencing discounts on account of economic or social status.”

Weeks: Judge may find "different occasions" ACCA enhancement

In U.S. v. Weeks, No. 12-11104 (Jan. 31, 2013), the Court affirmed the imposition of a mandatory minimum 180-month sentence under the Armed Career Criminal Act (“ACCA”), rejecting the argument that the sentencing court’s finding that the prior burglary offenses were not “committed on occasions different from one another” violated the Sixth Amendment, because this finding had to be made by a jury. The Court rejected Weeks’ reliance on dicta from Nijhawan v. Holder, 557 U.S. 29 (2009) that, in a criminal prosecution, “circumstance-specific” facts relating to a prior conviction would have to be found by a jury. The Court therefore held that it was bound by its prior holdings that district court may determine the factual nature of prior convictions, so long as they limit themselves to Shepard-approved sources.




Reviewing for “plain error,” the Court also rejected the argument that Weeks might only have been an accomplice for some robberies that others committed. The Court found no evidence in the charging documents that Weeks merely participated as an accomplice, and no Circuit or Supreme Court caselaw indicating that a charging document’s lack of specificity on this point mattered for ACCA classification purposes.

Hoffman: Mandatory Life Sentence Not Plainly Cruel and Unusual

In U.S. v. Hoffman, No. 12-11529 (Feb. 26, 2013), the Court rejected the argument that a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A)(viii) was “cruel and unusual” punishment in violation of the Eighth Amendment. Hoffman argued that his sentence violated the Eighth Amendment because he committed the two prior convictions that triggered the mandatory life sentence when the was a juvenile.




Reviewing the issue for “plain error” – Hoffman had not preserved the issue in the district court – the Court found no precedent that made the life sentence unconstitutional. The Court noted that Miller v. Alabama, 1232 S.Ct. 2455 (2012) involved a juvenile offender facing punishment for conduct committed when he was a juvenile. Here, Hoffman was an adult offender, not a juvenile.

Dell: Constitution does not require "innovative" defense counsel

In Dell v. U.S., No. 11-12904 (Feb. 27, 2013), the Court rejected a claim that defense counsel was constitutionally defective, under Strickland v. Washington, for failing to argue, either during sentencing or on direct appeal, for a downward variance based on the substantial disparity between the Sentencing Guidelines’ treat of crack and powder cocaine.




At the time of Dell’s direct appeal to the Eleventh Circuit, the Supreme Court had already decided Kimbrough, which held that a district court was authorized to grant a downward variance based on a policy disagreement with the crack guidelines. On appeal, Dell’s appellate counsel failed to seek a vacatur of the sentence based on Kimbrough. Dell’s co-defendants did press the issue, and ultimately, at resentencing, received lower sentences; Dell did not.



Since Dell’s counsel in the district court had also failed to raised a Kimbrough-type argument, the appeal could only have raised Kimbrough in a “plain error” argument.



The Court noted that competent counsel would have been able to show error, because under pre-Kimbrough law the district court treated the crack guideline as mandatory. The error would have been “plain” at the time of appeal. But appellate counsel would not have been able to show that the error affected his substantial rights. Nothing in the record in the district court at the original sentencing indicated that the district court would have imposed a lower sentence, even had a Kimbrough argument been made. Where the record does not provide any indication that there would have been a different sentence, the party with the burden of showing a difference loses. Thus, appellate counsel could not have shown that substantial rights would have been affected. Dell in turn did not receive ineffective appellate assistance of counsel, since he was not prejudiced by counsel’s performance.



The Court also held that trial counsel was not deficient at sentencing for failing to anticipate Kimbrough. The Court noted that it has never required counsel to anticipate future legal developments. Lawyers rarely, if ever, are required to be innovative to perform within the wide range of conduct that encompasses the reasonably effective representation mandated by the Constitution.



[Martin, J., concurring, questioned the Circuit’s rule that substantial rights are not affected when the Court cannot know whether the outcome would have been different. Martin noted that a sentencing hearing is not a forum for a judge “to air his list of grievances” about existing law. Martin noted that in view of a statement by the district court at a subsequent resentencing, Dell likely would have received a lesser sentence had his appellate counsel pressed the Kimbrough issue. Martin nonetheless stated she was bound by Circuit precedent to join the majority].

Gandy: Affirming ACCA sentence

In U.S. v. Gandy, No 11-15407 (Feb. 27 , 2013), the Court rejected a challenge to the determination that a defendant’s three prior convictions qualified as “violent felonies” for purposes of the mandatory 15-year sentence under the Armed Career Criminal Act (“ACCA”).




The Court rejected the argument that the information and certified judgment of conviction for one Florida prior offense cited only a sentence enhancement provision statute number, not the number of the substantive provision governing “aggravated assault.” The Court noted that the information quoted the text of the aggravated assault statute, and this sufficed.



Citing recent precedent, the Court rejected the argument that simple vehicle flight did not qualify as a “violent felony.” The Court also rejected the argument that the “residual clause” of ACCA is unconstitutionally vague.



The Court also rejected the argument that the sentence was invalid because Gandy was incorrectly advised at his plea hearing that the statutory maximum was 10 years, when in fact he was subject to a 15-year mandatory minimum. The Court noted that at sentencing the district court gave Gandy an opportunity to withdraw his plea, and he declined to do so.

Turner: No ACCA relief for 2255 movant

In Turner v. Warden, No. 10-12094 (Feb. 22, 2013), the Court affirmed the denial of a § 2241 motion by a defendant who claimed that his prior offenses did not qualify as “violent felonies” for purposes of a sentence enhancement under the Armed Career Criminal Act (“ACCA”).




The Court noted that for a petitioner who, like Turner, previously filed a § 2255 motion challenging his sentence, and for whom a subsequent § 2255 challenge of misapplication of the Sentencing Guidelines would therefore be foreclosed, the “last bastion” in which he can “seek refuge” under § 2241 is “when his claims involve an intervening change in the law that renders erroneous the ACCA violent felony enhancement used to enhance his sentence beyond the statutory maximum.”



The Court found that Turner’s prior conviction for shooting into an occupied building, in violation of Fla. Stat. § 790.19, qualifies as a “violent felony.” “Even if the offender believes the building to be unoccupied, the likelihood that an occupant or innocent passerby might be injured by falling debris – or the bullet itself – is real.”



The Court also found that battery on a police officer, in violation of Fla. Stat. § 784.07(2)(b), qualified as a violent felony. “The charged environment created when a citizen physically confronts the police is a verifiable powder keg, laden with danger to the officer, the defendant, and innocent bystanders alike.”



The Court also found that aggravated battery, in violation of Fla. Stat. § 784.045, is also a “violent felony.” The Court noted that Turner’s conviction involved stabbing a man in the chest.



[Hill, J. in a separate opinion, disassociated himself from the majority’s statement that, because sentence enhancement and sentences for underlying crimes are like “ducks and donkeys,” and they should not be treated the same under § 2255 and § 2241. “If our government can incarcerate people for time beyond that provided for by law simply because we call the incarceration a duck instead of a donkey, there is no constitutional guarantee against deprivation of liberty in this country.”]

Joseph: 30 year sentence for physician who dispense drugs unlawfully

In U.S. v. Joseph, No. 09-11984 (Feb. 21, 2013), the Court affirmed the convictions and sentences of a medical physician and his assistant convicted of dispensing controlled substances to drug abusers and pushers without a legitimate medical purpose and outside the usual course of professional conduct, in violation of 21 U.S.C. § 841(a).




The Court rejected the argument that a jury instruction erroneously instructed the jury to consider whether the defendants acted “in accordance with a standard of medical practice generally recognized and accepted in the United States.” The Court found that this instruction did not suggest that defendants’ actions be evaluated against a single national standard of practice. Instead it required the prosecution to prove that the actions were inconsistent with any accepted standard of professional practice.



The Court rejected the argument that there was no probable cause to support the issuance of a search warrant, pointing out that the 39-page affidavit provided substantial evidence that evidence of crimes would be found including evidence that the physician’s patients died from drugs after he prescribed them.



The Court also rejected a challenge to the admission of testimony that many of the patients either abused their drugs or sold their drugs, rejecting the argument that this evidence was unduly prejudicial.



The Court rejected a substantive reasonableness challenge to the physician’s 30-year sentence, noting that the district court could have imposed a “much more severe sentence.”

Izurieta: Rule of Lenity precludes conviction based on arguably non-criminal regulation

In U.S. v. Izurieta, No. 11-13585 (Feb. 22, 2013), the Court, having spotted the issue sua sponte and asked the parties to brief it after oral argument, held that an indictment charging unlawful importation of foods into the United States, in violation of 18 U.S.C. §§ 545 and 371, failed to state an offense. The Court therefore vacated all convictions and sentences.

The Court first rejected the government’s argument that the Court could not reach the issue, pointing out that the issue was jurisdictional, and that the Court could reach jurisdictional issues until the mandate issued.

The Court noted that the charged offense involved the violation not of a statute, but of a regulation issued by the Food and Drug Administration, 19 C.F.R. § 141.113(c). This regulation did not reference any criminal statute, but only specified liquidated damages, not criminal punishment, for failure to comply. Applying the rule of lenity, the Court found that 18 U.S.C. § 545 was “grievously ambiguous” regarding whether it criminalized violation of 19 C.F.R. § 141.113(c). The Court found that the conspiracy count was similarly infirm, because the “vast majority” of the allegations of this Court alleged not a violation of a separate statute, but of the same C.F.R. regulations.

Capers: Insufficient foundation for audio recording of drug buy

In U.S. v. Capers, No 10-14332 (Feb. 14, 2013), the Court affirmed crack-cocaine trafficking convictions in a case involving co-conspirators in Coconut Grove, Florida. Because the defendants were sentenced after the Fair Sentencing Act took effect, the Court remanded for a new sentencing in light of this Act.




The Court rejected one defendant’s argument that he was merely a “petty juggler,” who purchased crack only for personal use, not for trafficking. The Court noted that he purchased large amount of crack for redistribution.



The Court rejected another defendant’s argument that the district court erroneously quashed his subpoena served on news organizations for a recording of police interviews of him. The Court found that the district court correctly quashed the subpoena because the defendant did not show that the evidence was “highly relevant” and therefore surmounted the qualified privilege for journalists. The Court also noted that the defendant could have obtained the materials from another source – the Miami Police Department.



The Court agreed that the government failed to prove that one defendant “possessed” the crack, because he was outside house in which the drug transaction took place. However, the conviction could be sustained on an aiding and abetting theory of liability, because this defendant shepherded the buyer to the house for the purpose of purchasing crack.



The Court agreed that the government failed to lay a foundation for the use of an audio recording of a drug transaction. There was no testimony about the fidelity of the audio equipment, and no independent evidence of the accuracy of the audio recordings – no agent testify that he heard the original conversation and that it was the same one that was being played at trial. The government only presented testimony that the police gave the recording equipment to the cooperating informant before the crack buy, recovered it after the buy, and gave it to a colleague for conversion to CD. But the error in admitting the audio recording was harmless in light of other evidence of the drug buy, including a video recording.

Gibson: No Standing to challenge GPS-search of vehicle

In U.S. v. Gibson, No. 10-15629 (Feb. 14, 2013), the Court held that a defendant had standing to challenge the use of a GPS tracking device to locate a vehicle the defendant possessed – but only when the device was installed, not when the device was later used to seize incriminating evidence while the vehicle was being driven by another person


Gibson was not the registered owner of an Avalanche vehicle (it was owned by Burton), but he used it frequently. A GPS device was installed on the Avalanche without a warrant while it was parked in James Gibson’s driveway. Using the GPS, the police tracked the car making suspicious trips to Ocala, Florida, a “source city for narcotics.” The police stopped the vehicle for a traffic violation. Burton, not Gibson, was driving the Avalanche. Two kilos of cocaine were found inside.

The Court (2-1) held that Gibson lacked standing to challenge the search of Avalanche, because he was not the legal owner of this vehicle, he did not have exclusive custody or control over it, and he was neither a driver or passenger in it at the time it was searched.

Gibson had standing to challenge police testimony, based on the GPS, that Gibson was in a certain location while in possession of the Avalanche. But any error in admitting this evidence was harmless.

The Court rejected the argument that Double Jeopardy was not violated when the district court instructed the jury that it could convict a defendant for his renewed participation in a conspiracy for which he had already been convicted. The Court noted the defendant’s failure to object to this instruction, and the district court’s cautionary instruction to the jury that the defendant was not subject to multiple prosecutions for a single conspiracy. The district court instructed that the defendant liability was limited to acts performed after his first conviction, and this limitation ensured that he was not twice placed in jeopardy for the same conduct.

Darden: Conceding guilt not presumed to be ineffective

In Darden v. U.S., No. 10-16640 (Feb. 12, 2013), the Court held that U.S. v. Cronic (1984) does not require a court to presume that a defense counsel’s decision to concede guilt at trial on one of two robbery charges, without consulting the defendant, is ineffective assistance under the Sixth Amendment.




The Court noted that at trial “credibility must never be sacrificed.” This applies when the defendant “faces an unwinnable battle against one set of charges.” Here, Darden’s counsel conceded guilt as to one robbery “for the express purpose of preserving credibility with the jury to focus on” the other, contested, robbery. In addition, Darden vigorously stressed the lack of evidence as to the second robbery. This was not a case of counsel’s “betrayal of his client.”



The Court also found that the failure to consult with the defendant on the strategy of conceding guilt, “while certainly” among counsel’s duties, did not automatically prejudice the defendant.

Davis: Dismissal of juror "manifestly necessary"

In U.S. v. Davis, No. 12-10938 (Feb. 12, 2013),



the Court held that the district court’s declaration of a mistrial after the trial commenced, the dismissal of two jurors, and the defendant’s refusal to proceed with a jury of less than 12, was supported by the doctrine of “manifest necessity,” and consequently did not violate Double Jeopardy.




The Court found that the action that caused the mistrial – the dismissal of one of the two jurors – was “manifestly necessary.” The juror indicated that she could not understand “a lot of things” at trial. The Court noted that it was unfeasible to halt the trial when the juror raised her hand and said she did not understand: “Who would do the explaining during the trial?” Because the dismissal of one juror was sufficient to justify a mistrial (because Davis would not consent to less than 12 jurors), the Court did not reach whether the dismissal of the second juror was manifestly necessary.



The Court noted that the district court’s failure to consult with Davis before declaring a mistrial, as required by Fed. R. Crim. P. 26.3, not a dispositive factor. “Even though the court could have conducted a more formal or structured colloquy with Davis before declaring a mistrial, given the circumstances its failure to do so was not reversible error.”

Slaughter: No Suppression of statement under Harris

In U.S. v. Slaughter, No. 11-15262 (Feb. 11, 2013), the Court affirmed convictions for use of the internet to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).




The Court rejected the argument that the district court should have suppressed a statement Slaughter gave to police after they entered his home without a warrant, and brought him to the police station. The Court held that the statement need not be suppressed as the fruit of a poisonous entry. The police had probable cause to arrest Slaughter, and gave him his Miranda warnings at the station house. Under these circumstances, New York v. Harris (1990) does not require suppression of the statement.



The Court also rejected the argument that the district court should have severed the count that charged Slaughter as a registered sex offender from the other count. The Court recognized that the evidence that Slaughter was a registered sex offender was “prejudicial,” but the jury had already heard substantial, sexually explicit evidence that he intended to engage in sexual activity with two underage girls, and planned to meet them at a hotel room.



Finally, the Court rejected the argument that Slaughter could not be guilty of committing a felony offense involving a “minor” while being a registered sex offender, because he was not dealing with actual minors, but government agents posing as minors. The Court noted that the statute criminalizes attempts to entice minors, which does not require an actual minor.

In Re Grand Jury Proceedings No. 4-10: Required Records Exemption applies

In In Re: Grand Jury Proceedings, No. 4-10, No. 12-13131 (Feb. 7, 2013), the Court rejected the argument by targets of a grand jury investigation that their Fifth Amendment privilege against self-incrimination shielded their records of foreign bank accounts from production to the government in compliance with a grand jury subpoena. The Court held that these records were exempt from the Fifth Amendment under the Required Records Exemption.

The Court found that, although the purpose of the Bank Secrecy Act and its implementing regulations, which required persons to keep and file reports regarding their relations with foreign financial agencies, was partly in aid of criminal law enforcement, it was “essentially regulatory.” The Court also found that such records are “customarily kept.” Finally, the Court found that the records had “public aspects” which render them analogous to public documents. Consequently, the Required Records Exemption applied, and the target could not invoke the Fifth Amendment as a ground for non-compliance with the grand jury’s subpoena of its records of its foreign bank accounts.

Colon: Crack cocaine offender not 750 eligible when original sentence was already below new range

In U.S. v. Colon, No. 12-12794 (Feb. 6, 2013), the Court held that a crack cocaine offender who received a downward variance at her original sentencing could not benefit under Amendment 750 to the Sentencing Guidelines for a sentence reduction under 18 U.S.C. § 3582(c)(2).




Under Amendment 750, Colon’s new guidelines range would have been 30 to 37 months. However, as a result of an earlier downward variance, Colon’s sentence was already 27 months – below the new range.



The Court pointed out that § 3582(c)(2) provides that sentence reductions are only permitted “if . . . consistent with the applicable policy statements issued by the Sentencing Commission.” When it adopted Amendment 750, the Commission also adopted U.S.S.G. § 1B1.10(b)(2)(A), which prohibits sentences at a § 3582(c)(2) resentencing from being less than the low-end of the new guideline range, i.e., in Colon’s case, prohibited a reduction below 30 months.



The Court rejected the argument that this policy statement was an Ex Post Facto violation, pointing out that Colon was originally sentenced years before Amendment 750 and § 1B1.10(b)(2)(A). The Court also rejected the argument that the policy statement “overrides” a district court’s sentencing discretion, finding that the Commission “merely limited” the extent to which new variances can be awarded.



The Court also rejected arguments that the policy statement violated the Separation of Powers doctrine, or the Administrative Procedure Act.

Penney: 3.800 Motion not properly filed

In Penney v. Sec., Dep’t of Corrections, No. 10-14628 (Feb. 5, 2013), the Court held that a federal habeas petition was untimely because it was filed after the one-year limitations period under AEDPA.




The Court noted that the one-year period is tolled while a state prisoner has a “properly filed” state post-conviction motion pending in state court. Penney had filed a post-conviction motion under Fla. R. Crim. P. 3.800(c). The Court recognized that a Rule 3.800(c) motion might toll the AEDPA limitations period, but found that Penney had untimely filed this motion in Florida court, and it was therefore not “properly filed.” As a result, his federal petition was now untimely, because filed after the one-year AEDPA period expired.

Fordham:Skilling Not basis for invaliding bribe scheme

In Fordham v. U.S., No. 12-10299 (Jan. 31, 2013), the Court rejected a § 2255 challenge to convictions for defrauding a mental health center.




The defendants argued that their convictions should be vacated in light of Skilling v. U.S., 130 S.Ct. 2896 (2010), which limited “honest-services fraud” under 18 U.S.C. § 1346 to cases involving bribes and kickback schemes and not mere undisclosed self-dealing, or conflicts of interest.



The Court found that the defendants defaulted these claims by failing to raise them in the district court or on direct appeal of their convictions. The Court rejected the argument that the default could be cured because of “actual prejudice.” The Court found that the sporadic references at trial to “honest services,” and a single jury instruction on this now invalid theory, did not suffice to show prejudice. The record demonstrated that the jury was presented with evidence that they participated in a scheme involving the payment of bribes.



For the same reason, the Court rejected the argument that the defendants were “actually innocent.”

McGuire: Upholding Conviction and Sentence for firing at a helicopter

In U.S. v. McGuire, No. 11-12052 (Jan. 30, 2013), the Court rejected a sufficiency of the evidence challenge to a conviction for violating 18 U.S.C. § 32(a)(1) by firing a single shot from a handgun in the general direction of an airborne police helicopter.




McGuire admitted that a witness testified that he saw McGuire shoot a pistol skyward right toward the spotlight where a helicopter orbited. The Court noted McGuire’s argument that he was distraught over losing his girlfriend and his job, and wasn’t really aiming at the helicopter, but concluded that this was for the jury to decide.



The Court also held that a violation of 18 U.S.C. § 32(a)(1) qualifies as a “crime of violence” for purposes of 18 U.S.C. § 924(c). The Court noted that even if the conduct was merely attempting to disable an aircraft, it “still involves an intentional act against another’s property that is calculated to cause damage and that is exacerbated by indifference to others’ wellbeing.”

Jimenez: Conflict of Interest alone is insufficient to misapply funds

In U.S. v. Jimenez, No. 11-15039 (Jan. 25, 2013), the Court held that the evidence was insufficient to support a conviction for violating 18 U.S.C. § 666 by intentionally misapplying $5,000 or more from an organization receiving federal funds.


Jimenez was Deputy Director of a Head Start program in Hillsborough County, Florida. During his tenure, the program paid $9,000 to the defendant’s wife to order 750 copies of her book entitled Travel Boy Helps Sebastian Trapping the Germs. It was not Jimenez, but Mason, Jimenez’s superior, who directed the payment of funds. Jimenez failed to complete the required “conflict of interest” disclosure form indicating that his wife had a contractual relationship with Head Start.

The government argued that Jimenez’s skirting of conflict of interest rules established a § 666 violation. The Court rejected this argument. The Court pointed out that the statute makes it unlawful to intentionally misapply funds. Here, it was not Jimenez, but his superior, Mason (who was also charged – and acquitted – of a § 666 violation), who directed the application of funds. The Court held that an undisclosed conflict of interest, standing alone, is insufficient to sustain a § 666 violation.

Grim: Statute adequately notifies defendants of death penalty aggravators

In Grim v. Sec. Fla. Dep’t of Corrections, No. 11-11890 (Jan. 22, 2013), the Court affirmed the denial of habeas relief to a Florida death row inmate convicted of a 1998 murder.




The Court rejected the argument that the indictment was defective because it failed to set forth the aggravating factor that was relied on as the basis for the imposition of a death sentence. The Court noted that the Fifth Amendment Indictment Clause is not applicable to the States.



The Court rejected the argument that the sentence was invalid because the jury was not required to find an aggravating factor beyond a reasonable doubt. The Court pointed out that the Florida Supreme Court had found that the jury unanimously found two aggravating factors, and recommended that the defendant be sentenced to death. The Court noted that it had recently held that a system of advisory jury verdicts does not violate the Sixth Amendment.



Finally, the Court rejected the argument that the indictment should have given the defendant notice of the aggravating factors it would rely on in obtaining the death penalty. The Court noted the Florida Supreme Court’s holding that the aggravating factors set forth in Florida’s death penalty statute notify defendants of the factors that support the death penalty, and no United States Supreme Court case has addressed this issue.

Hall: Transfer of identity is not "use"

In U.S. v. Hall, No. 11-14698 (Jan. 16, 2013), the Court held that the district court erroneously found that the offense involved more than 50 victims and therefore erroneously applied the four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B).


Hall, an office assistant in a doctor’s office, unlawfully sold to accomplices identifying information of approximately 65 to 141 patients, for the purpose of misusing their identity. However, only 12 of these patients’ personal information was actually used to obtain fraudulent credit cards.

The Court noted that the additional individuals were not “victims” for purposes of Application Note 1 of the Guideline, because they did not sustain “any part of the actual loss.” The Court found that the individuals did not qualify as victims under Application Note 4E because their identification was not “used.” The Court found that while the identities were “transferred” they were not “used.” “Transfer means something distinctly different than use.” The Court stated:

The purpose of the conspiracy in this case was to obtain cash advances and purchase items by using fraudulent credit cards. Hall’s sale of the unauthorized identifying information to her co-conspirators did not implement the purpose of the conspiracy. Hall’s mere transfer of the personal identifying information, without more action, did not employ that information for the purpose for which the conspiracy was intended . . . the personal information was not used, as that term is ordinarily understood, until Hall’s co-conspirators secured the fraudulent credit cards. At that point, the 12 individuals whose personal information was compromised became victims.


Because it was unclear whether the district court’s misapplication of the Guidelines might have affected the sentence, the Court vacated the sentence and remanded the case for resentencing.

McIntosh: Indictment unnecessary to sustain sentence

In U.S. v. McIntosh, No. 10-15894 (Jan. 7, 2013),


the Court held that the dismissal of an original indictment did not result in the district court’s loss of jurisdiction over a guilty plea entered before dismissal of the indictment. The Court noted that only an indictment’s failure to describe conduct proscribed by a federal statute is a jurisdictional defect. McIntosh’s original indictment did not suffer from this kind of defect (it alleged the wrong date for the commission of the offense).

The Court rejected the argument that because the indictment had been dismissed prior to sentencing, the sentencing violated the Fifth Amendment’s Grand Jury Clause, which provides that a person shall not “answer for” a crime unless indicted. The Court found that once a defendant has been convicted, the indictment no longer serves a function. “An indictment defect that exists only after a conviction is, at most, a technical defect because it has no bearing on the substantive fairness of the conviction or the process by which it was obtained.”

The Court rejected the argument that allowing a district court to proceed with sentencing after the indictment had been dismissed usurped on the Executive Branch’s sole authority to bring cases. The Court noted that the prosecutor retained the power to unequivocally terminate cases by moving to vacate convictions.

Turning to sentencing, the Court agreed with both McIntosh and the government that he should be resentenced in accordance with the Fair Sentencing Act’s revised penalty provisions, because he was sentenced after the FSA took effect. “The FSA’s revised penalties apply to defendants sentenced after the FSA’s effective date, even if their offenses occurred prior to that date.”

Garcia-Sandobal: Disorderly Intoxication Counts as Criminal History

In U.S. v. Garcia-Sandobal, No. 11-12196 (Jan. 3, 2013), the Court held that a prior conviction for “disorderly intoxication,” in violation of Fla. Stat. § 856.011, counts for purposes of increasing a defendant’s criminal history category under the Sentencing Guidelines.

Garcia-Sandobal pled guilty to unlawful re-entry, in violation of 8 U.S.C. § 1326(b)(2). The Court rejected Garcia-Sandobal’s argument that he had not committed a “crime of violence” prior to his illegal re-entry, noting that during his plea colloquy Garcia-Sandobal unequivocally pleaded guilty to violating § 1326(b)(2), thereby waiving his right to appellate review of this issue.

The Court rejected the argument that Garcia-Sandobal’s prior conviction for disorderly intoxication should not have caused a two point increase in his Guidelines criminal history score. Applying the Guidelines’ five-factor “common sense approach” to this issue, the Court noted that the Florida offense carried a maximum penalty of 60 days in jail, and Garcia-Sandobal was initially sentenced to 50 days, and then an additional 60 days when probation was revoked. “It is difficult to imagine a scenario where an individual spends nearly one-third of a year in jail for endangering the public or causing a disturbance, yet his conviction is not considered serious enough to count toward his criminal history score.”

The Court emphasized that under Florida law, as opposed to the law in other states, disorderly intoxication “requires proof that the defendant endangered someone or created a public disturbance.” The Court also noted Garcia-Sandobal’s underlying conduct: “someone who gets drunk and walks in the middle of a public road at 2:36 a.m., nearly causing a collision with an oncoming vehicle, engages in conduct that suggests the likelihood of recurring criminal conduct.”

Petite: Any Intentional Vehicle Flight is a "Violent Felony"

In U.S. v. Petite, No. 11-14996 (Jan. 3, 2013), the Court, relying on Sykes v. U.S., 131 S.Ct. 2267 (2011) and overruling U.S. v. Harrison, 558 F.3d 1280 (11th Cir. 2009), held that a prior conviction for intentional vehicular flight from an authorized law enforcement patrol car, in violation of Fla. Stat. § 316.1935(2), qualifies as a “violent felony” for purposes of the higher mandatory minimum punishment for convicted felons under the Armed Career Criminal Act (“ACCA”).
The Court noted that Sykes involved a “strikingly similar” Indiana vehicular flight statute, in which the Supreme Court held that because of the inherent risk in vehicular flight, the offense qualified as a “violent felony.” The Court noted that Sykes had “sharply curtailed” the reach of cases like Begay, by determining that the requirement of “purposeful, violent and aggressive” conduct “no longer applies to intentional crimes like vehicle flight.
The Court rejected the argument that Sykes could be distinguished because, unlike Florida, Indiana did not have a “gradient of penalties for different levels of vehicle flight.” Although Sykes left “for another day” the issue of how escalating tiers of punishment might affect the analysis, the Court found “little meaningful distinction” in the existence of a gradient of offenses. The Court found that any intentional flight “provokes a dangerous confrontational response” from police, which creates the “serious risk” of injury that qualifies an offense as a “violent felony” under ACCA.

Smith: No Abandonment by lawyers

In Smith v. Comm. Ala. Dep’t of Corrections, No. 11-13802 (Dec. 28, 2012) (2-1), the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for a 1994 murder, finding his petition to be time-barred under AEDPA.



Smith filed for an application post-conviction relief in Alabama within the one-year period during which the filing for State post-conviction relief tolls the federal AEDPA statute of limitations. However, the lawyers who filed the application neglected to pay the filing fee, or to seek leave of court to proceed in forma pauperis. Consequently, the application was not “properly filed” under Alabama law – and, therefore, for purposes of tolling the AEDPA limitations period.



One of the lawyers had an ongoing history of substance abuse, and was charged with possessing a controlled substance – less than a month after Smith’s application was filed. The other lawyer was not admitted to the Alabama bar, and did not move for admission pro hac vice. The Court nonetheless found that Smith was not “abandoned” by his lawyers and therefore could not qualify for equitable tolling of the AEDPA limitations period. The mere fact of failing to pay a filing fee, or to move for pro hac vice status, does not constitute abandonment.

Pooler: No ineffectiveness of counsel

In Pooler v. Sec., Fla. Dep’t of Corrections, No. 12-12059 (Dec. 17, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1995 murder.




The Court rejected the argument that defense counsel was ineffective during the penalty phase of the case by failing to locate records that would show Pooler’s background. The Court noted the efforts counsel made, and the justifiable reliance on the information Pooler himself furnished.



The Court also found no ineffective assistance in counsel’s reliance on only two mental health experts, or the failure to highlight Pooler’s alcohol use on the day of the murder, which “may not have been mitigating in the jury’s eyes, and may well have opened the door not only to evidence of Pooler’s cavorting with a prostitute hours before he brutally killed his ex-girlfriend, but also to the abundant evidence of Pooler’s bad temper and propensity to violence when he was drunk.”



The Court also rejected Pooler’s attempt to rely on the Supreme Court’s decision in Porter v. McCollum, finding the ineffectiveness of counsel in that case distinguishable.

Thompson: Restoration of right to vote not sufficient for possession of firearm

In U.S. v. Thompson, No. 11-15122 (December 11, 2012), the Court held that although a defendant’s right to vote had been restored following an earlier Alabama assault conviction, this did not mean his civil rights had been restored for purposes of exempting him from being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).




The Court pointed out that the statute refers to the restoration of civil rights, in the plural. Only Thompson’s right to vote was restored. His right to serve on a jury, and to hold public office, were not restored.



The Court rejected the argument that “voting rights” encompasses several attendant rights, including the right to vote in federal elections, and state elections, and primaries. “[T]he fact remains that Thompson had only one of the three key civil rights restored: the right to vote.”

Laist: 25-day computer seizure not unreasonable

In U.S. v. Laist, No. 11-15531 (Dec. 11, 2012), the Court held that a government 25-day delay in submitting an application for a search warrant while holding a computer based on probable cause was not an unreasonable seizure under the Fourth Amendment.




The Court first rejected the argument that the six days during which the search warrant application was submitted to and under consideration by a federal magistrate judge should be counted, in addition the preceding 25 days, in determining the unreasonableness of the delay. The Court distinguished the deterrent effect of the exclusionary rule on law enforcement agents from its effect on magistrate judges.



Turning to the 25-day delay, the Court emphasized that the defendant had a “diminished” possessory interest his computer, because he had an opportunity, when the computers were seized, to copy or remove personal documents. Moreover, the defendant admitted to the presence of illicit child pornography images on his computer.



The Court also found that the FBI Agent promptly started preparing the search affidavit once it was needed, and included “very substantial amount information” as to the defendant’s conduct in pages 14-17 of the affidavit. The Court noted that the investigation of the case took roughly a year, and that the Agent worked in a two-person office that covered ten Georgia counties. “The government’s efforts here were sufficiently diligent to pass muster under the Fourth Amendment.” The Court distinguished U.S. v. Mitchell, in which the Court had found a 21-day delay to be unreasonable under the Fourth Amendment, finding the facts “readily distinguishable” – and pointing to Laist’s “diminished personal interest in his computer.”

Rozier: Johnson does not entitle 2255 movant to relief

In Rozier v. U.S., No. 11-13557 (Nov. 21, 2012) (2-1), the Court held that a movant pursuant to 28 U.S.C. § 2255 was not entitled to relief from his sentence based on the United States Supreme Court’s decision in Johnson v. U.S., 130 S.Ct. 1265 (2010).




In 2001, Rozier was sentenced as a career offender. His career offender status was based in part on a prior conviction for battery on a police officer in violation of Fla. Stat. § 784.07(2)(b). Years after his sentence was affirmed on appeal, the Supreme Court decided Johnson, in which it held that, under the “elements clause” of the career offender guideline, a Florida felony battery did not qualify as a predicate offense. Johnson did not reach whether the offense qualified under the Guideline’s “residual clause.”



The Court recognized that Johnson is retroactively applicable. However, because Johnson did not reach whether a Florida battery qualified as a predicate offense under the “residual clause” of the Guideline, it was not a “change in controlling law” that would entitle Rozier to relief on a § 2255 claim. In its prior decision in Rozier’s appeal, the Eleventh Circuit had relied on the residual clause in affirming the sentence. Because there was no intervening decision contrary to its prior ruling, the Eleventh Circuit was bound by its earlier ruling.



[Dissenting, Judge Hill stated: “I reluctantly conclude that our court is determined to deny relief to every confined habeas petitioner whose sentence has been unlawfully enhanced under either the career offender guideline or the armed career criminal statute.”]

Berry: FSA does not apply to defendants sentenced pre-FSA

In U.S. v. Berry, No. 12-11150 (Nov. 14, 2012), the Court held that a defendant sentenced in 2002, prior to the effective date of the Fair Sentencing Act (FSA), was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2).




Berry was subject to a statutory mandatory minimum life sentence. Consequently, the Court found, Amendment 750 had no effect on his Guideline range or sentence.



The Court recognized that the FSA, which became effective August 3, 2010, lowered the statutory minimum penalties for crack cocaine offenses. But noting that the FSA is not a Guidelines amendment but a statutory change by Congress, the Court held that the FSA cannot serve as a basis for a § 3582(c)(2) reduction.



The Court added that even assuming that an FSA claim could be brought in a § 3582(c)(2) motion, the claim still fails. The Court explained that the savings clause, 1 U.S.C. § 109, precludes extinguishment of the sentence Berry received in 2002. The Court distinguished the Supreme Court’s decision in Dorsey v. U.S., pointing out that it only held that defendants sentenced after the effective date of the FSA would be subject to the reduced mandatory minimums for crack cocaine offenders. Dorsey did not address defendants sentenced, like Berry, before the FSA took effect.

Burton: Client may have ultimate authority to call witnesses

In Burton v. Commissioner, Alabama Dep’t of Corrections, No. 10-12108 (Nov. 7, 2012), the Court denied habeas relief to an Alabama death row inmate.




At the penalty phase of Burton’s murder trial, contradicting the position of his defense counsel stated on the record, Burton asked the trial judge to have counsel call two of his accomplices. These two witnesses not only provided no mitigating evidence, but they opened the door for cross-examination that allowed the State to introduce aggravating evidence. The jury sentenced Burton to death, and the Alabama courts affirmed.



In federal habeas proceedings, Burton argued that the Alabama trial judge erred when he allowed Burton to override the decision of his own defense lawyer, and had the two witnesses testify in the penalty phase. The Court rejected this argument, noting that the United States Supreme Court has not yet decided whether the ultimate authority to call witnesses at trial belongs to counsel or the client. Consequently, the state trial judge’s ruling that the decision to call witnesses ultimately rests with the client did not contravene clearly established law as determined by the Supreme Court – the standard for habeas relief under AEDPA.

Bellaizac-Hurttado: Drug Trafficking Not a Violation of Customary International Law

In U.S. v. Bellaizac-Hurtado, No. 11-14049 (Nov. 6, 2012), the Court reversed convictions for cocaine trafficking offenses in violation of 46 U.S.C. §§ 70503(a), 70606; 21 U.S.C. § 960(b)(1)(B), that occurred in the territorial waters of Panama. The Court held that Congress cannot constitutionally proscribe such drug trafficking offenses under its Article I power to “define and punish . . . Offences against the Law of Nations.”




The Court explained that the power to “define” offenses does not give Congress the power to “create or declare offenses against the law of nations, but instead to codify and explain offenses that had already been understood as offenses against the law of nations.” The Court held that offenses against the law of nations means offenses under customary international law. The Court noted that it need not decide whether the power to “define” offenses changes with the evolution of customary international law, because drug trafficking was not a violation at the time of the Founding, and is not a violation today – noting that a number of countries’s economies are “dependent on the drug trade,”contrasting the international community’s treatment of genocide, and pointing out that the International Criminal Court does not have jurisdiction over drug trafficking.



[Judge Barkett, concurring, would have held that an offense is only “against the Law of Nations” if it is subject to “universal jurisdiction” – which, she found, drug trafficking is not].

Lawrence: Deference to Florida Competency determination

In Lawrence v. Sec. Dep’t of Corrections, No. 10-13862 (Oct. 30, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1998 murder. The Court held that, under AEDPA’s deferential standard of review, the Florida courts did not unreasonably determine that, despite suggestions that the defendant was experiencing "hallucinations" during the trial, he was competent to stand trial, pointing inter alia to evidence that the defendant was merely "having a bout with his conscience."

Evans: Florida death penalty procedure still constitutional

In Evans v. Sec., Fla. Dep’t of Corrections, No 11-14498 (Oct. 23, 2012), the Court, reversing the district court, held that Florida’s rules allowing the imposition of the death sentence by a judge, after giving “great weight” to a jury’s advisory sentence of death, did not violate the Sixth Amendment right to jury trial, and therefore was not a basis for a grant of habeas relief.




The Court noted that in Ring v. Arizona, the Supreme Court, though finding Arizona’s judge-only procedure of imposing the death penalty unconstitutional, described Florida’s system as a “hybrid,” because the jury renders an advisory verdict but the judge makes the ultimate sentencing determination. The Court interpreted the Supreme Court’s description of Florida’s procedure as a “hybrid” as having left open the issue of its constitutionality. The Court noted that the Supreme Court, in Hildwin v. Florida, a decision predating Ring, upheld the constitutionality of Florida’s procedure. Because only the Supreme Court can overrule one of its decisions, the Court found that Florida’s procedure was not unconstitutional.



The Court also rejected the argument that defense counsel was ineffective for failing to call seven potential witnesses at Evans’s trial, finding that the Florida Supreme Court did not unreasonably reject this claim.

Griffin: Questioning is not a Fourth Amendment event

In U.S. v. Griffin, No. 11-15558 (Oct. 2, 2012), the Court reversed the district court’s grant of a motion to suppress, finding that a constitutionally valid stop and frisk did not become unreasonable when the officer asked some brief questions unrelated to the reason for the stop and the purpose of the frisk.




Responding to a 911 call, a Jacksonville police officer arrived at a store. The security guard pointed to a man walking quickly away as a person who’d attempted to steal some clothing. The officer followed the person, Griffin, who continued to look over his shoulder and walk briskly away. The officer told him to stop. Griffin continued to walk away. The officer stopped Griffin, and frisked him to ensure his own safety.



During the frisk, the officer felt what he believed were C-cell batteries in Griffin’s back pocket. He did not reach into the pocket but asked “Hey, what’s in your pockets? Why do you have batteries.” Griffin responded that the items were shotgun shells and not batteries. The officer asked Griffin if he had ever been to prison. Griffin answered: “yes.” After the officer informed him that it was illegal for felons to possess weapons or ammunition, Griffin began to flee. The officer arrested him. Griffin was charged with being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1).



The Court noted that the initial stop of Griffin was permissible, because the officer reasonably suspected that Griffin had attempted to steal some clothing.



The Court rejected the argument that the frisk was unjustified. The Court noted that the officer was alone, in a high crime area, had not been told anything about Griffin other than he tried to steal some item of clothing. Griffin acted evasively and refused to obey the command that he stop. The officer had not finished investigating the alleged attempted theft. For these reasons, the frisk was consistent with Terry v. Ohio and its progeny. The frisk did not violate Minnesota v. Dickerson, because the officer did not continue an exploration of the pocket after feeling the items in the pocket. The officer did not reach into the pocket, but instead asked Griffin why he was carrying batteries.



The Court rejected the district court’s conclusion that the questioning of Griffin about the items in his back pocket violated the Fourth Amendment because it was not reasonably related to the circumstances that justified the stop. The Court stated that “unrelated questions posed during a valid Terry s top do not create a Fourth Amendment problem unless they measurably extend the duration of the stop. This is because such questions, absent a prolonged detention, do not constitute a discrete Fourth Amendment event.”



The Court found that the exchange between the officer and Griffin did not last more than 30 seconds. This “brief” questioning did not transform the stop into an unconstitutionally prolonged seizure.

Holsey: Affirming denial of habeas relief where postconviction evidence was largely cumulative

In Holsey v. Warden, No. 09-14257 (Sept. 13, 2012), the Court (2-1) (Barkett, J., dissenting) denied habeas relief to a Georgia death row inmate convicted of a 1995 murder.




The Court rejected the argument that the Georgia Supreme Court unreasonably determined that the additional mitigating circumstances presented at post-conviction proceedings were “largely cumulative” of the evidence presented at trial. The Court found that at his initial trial, Holsey put mitigating evidence of his own “limited intelligence.” Although in collateral proceedings he later put on evidence of “borderline mental retardation,” most of the evidence in the proceedings was cumulative of earlier-presented evidence. Similarly, while Holsey presented more details of his abusive childhood at his collateral proceedings, the jury at the original sentencing “had heard about his troubled, abusive upbringing too.”

Duboc: Treaty does not create rights for private persons

In U.S. v. Duboc, No. 11-15133 (Sept. 11, 2012), the Court affirmed the amendment of an existing criminal forfeiture order that ordered the forfeiture of two condos in Thailand in 2011, 12 years after the initial order of forfeiture.
The Court rejected Duboc’s argument that the government failed to prove that he used the proceeds of illegal activity to purchase the Thailand condos. Duboc argued that only 2.4% of the proceeds of his drug trafficking involved importation into the United States. The Court stated that even assuming this was accurate, it does not show that the Thailand condos were not purchased with the proceeds of the crimes of conviction.
The Court also rejected Duboc’s statute of limitations argument, ruling that because the properties were outside the United States, the limitations period had not begin to run. The Court also rejected Duboc’s laches argument, pointing out that the forfeiture statute allows amendment "at any time."
The Court also rejected the argument that the delay in the government’s enforcement of its rights against the Thai condos violated Due Process, noting that Duboc made no showing of prejudice. The Court also rejected Duboc’s attempt to rely on the Mutual Legal Assistance Treaty between Thailand and the United States, holding that this treaty, which involved mutual assistance in law enforcement, did not create rights for private persons.

Dortch: No plain error in constructive amendment

In U.S. v. Dortch, No. 10-14772 (Sept. 11, 2012), the Court affirmed convictions for unlawful possession of firearms by a convicted felon, possession of marijuana with intent to distribute, and use of a firearm during a drug-trafficking offense.
During the trial, the district court did not allow the government to introduce evidence of some of Dortch’s prior convictions, because they were too old or too prejudicial. However, for deliberations, the jury was given an unredacted copy of the indictment, which listed the prior offenses. The Court held that the error was harmless, because Dortch stipulated that he was a convicted felon, and the evidence supporting the convictions was "overwhelming." In addition, the district court instructed the jury that the indictment was not evidence.
On plain error review, the Court rejected the argument that the district court committed reversible error because it constructively amended the indictment when it instructed the jury that it could convict Dortch of firearm possession without specifying that it must find that he possessed the specific firearms identified in the indictment. The Court noted that there was no Supreme Court or Eleventh Circuit precedent holding that a constructive amendment occurs when a district court instructs the jury that it may convict for possession of any firearm. The Court therefore found that it "need not address whether a constructive amendment amounts to per se reversible error when the defendant fails to object at trial, because even if we assume the district court erred, the error was not plain."

Finally, the Court rejected the argument that the district court abused its discretion when it excluded evidence that Dortch was acquitted of state charges relating to the same drug transactions at issue. "Judgments of acquittal are hearsay."

Johnson: Passenger must direct risk to be enhanced for driver's recklessness

In U.S. v. Johnson, No. 11-13621 (Sept. 10, 2012), the Court reversed and remanded for resentencing a sentence enhancement under U.S.S.G. 3C1.2, which provides for a two-level enhancement if the defendant "recklessly created a substantial risk of death or serious bodily injury to another in the course of fleeing from a law enforcement officer."
The defendants participated in the armed robbery of a CVS pharmacy in Atlanta. Police arrived during the robbery. Two defendants hopped into a stolen 1995 Honda, one the driver, the other the passenger. They fled police, ignoring traffic signals, and causing other cars to make evasive maneuvers to avoid being hit. Police backed off pursuit because of safety concerns. Both defendants were ultimately apprehended and convicted.
The Court held that the district court erred in imposing the § 3C1.2 enhancement on the passenger of Honda based on a mere finding that the risk created by the driver was "reasonably foreseeable" to the passenger. The Court noted that a district court must find that a defendant "actively caused or procured the reckless behavior at issue."
The Court rejected the government’s argument that one could infer a plan of escape from the premeditation of the robbery. "It is likely that [the two defendants] did not anticipate police showing up while they were still inside the store, but the record does not permit us to make such inferences either way."
The Court noted the government’s argument that the passenger must have been aware of the need to "ram a police car to escape" from the fact that police were on the scene when he got in the getaway car. But the district court did not rely on this fact in its § 3C1.2 determination.
The Court rejected the government’s argument that the fact that Johnson fled on foot once the car crashed into a pole shows that he sought to escape during the high-speed chase. The Court noted that the flight on foot did not indicate whether the passenger played any active supporting role in the reckless car-flight.
The Court remanded and instructed for the district to "reopen the record" and "turn its eye to the robbery scene" when the defendants exited the CVS store, considering where the police and their cars were situated.

Franklin: Exigent circumstances justifies search

In U.S. v. Franklin, No. 11-10555 (Sept. 7, 2012), the Court held that because of exigent circumstances, law enforcement did not violate a person’s Fourth Amendment rights when they entered his home without a warrant and seized rifles and sawed off shotguns.
After responding to a request from a Florida Probation Officer to assist him at Franklin’s home, a deputy sheriff went to the back of the house and saw several firearms in plain view through a rear window. There was another person in the house. Franklin ultimately emerged from the house to surrender. The police entered the house where they seized the rifles and shotguns.
The Court held that the law enforcement agents could reasonably have believed that the person inside the home could remove the rifles and shotguns before a search warrant could be obtained. Therefore, there was no Fourth Amendment violation.

Shelton: AEDPA precludes holding statute unconstitutional

In Shelton v. Sec., Dep’t of Corrections, No. 11-13515 (Aug. 24, 2012), the Court reversed the grant of habeas relief to a Florida inmate convicted of cocaine trafficking, and sentenced to 18 years in jail.
The district court held that the Florida statute violated Due Process, because the law partially eliminated an element of mens rea – under the Florida statute, an offender must be aware of the presence of an unlawful substance but need not be aware of the substance’s unlawful nature. Reversing, the Court held that this ruling was not permitted by AEDPA, which allows a federal court to reverse a state court’s determination only if that state court determination unreasonably applies clearly established Supreme Court precedent. Here, the Supreme Court has not held that a statute with only a partial mens rea violates Due Process. The Court expressed no view on the underlying constitutional question – only that the issue was "novel" and could be the basis for habeas relief.

Ponticelli: Insufficient evidence of ineffectiveness

In Ponticelli v. Sec., Florida Dep’t of Corrections, No. 11-11966 (Aug. 16, 2012), the Court (2-1) affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1987 murder.
The Court found that the Florida Supreme Court did not unreasonably reject Ponticelli’s claim that his counsel’s deficient performance during the penalty phase of his state trial did not prejudice him. The Court agreed that any new mental health testimony would have been "cumulative" to testimony the jury heard. The Court also agreed that evidence of cocaine abuse would have done more harm than good, as the state could have elicited testimony that Ponticelli had a history of drug abuse, but had quit on one occasion for an extended period of time, only to return to a habit he knew was evil.

Kuenzel: Insufficient proof of "actual innocence"

In Kuenzel v. Commissioner, Ala. Dep’t of Corrections, No. 10-10283 (Aug. 17, 2012), the Court held that the habeas petitioner, sentenced to death for a 1987 murder, failed to present sufficient evidence of "actual innocence" and therefore could not overcome the state procedural bar to his federal habeas claims.
The Court noted that evidence of actual innocence need not establish "conclusive exoneration," but it must do more than strengthen a defense if offered at trial: it must show that it is more likely than not that no reasonable juror would have convicted in light of the new evidence. The Court, after reviewing Kuenzel’s new evidence, concluded that he had not met this "heavy burden."

Mathurin: Plea Negotiations do not toll Speedy Trial Act

In U.S. v. Mathurin, No. 11-13211 (Aug. 15, 2011), the Court held that the government violated the Speed Trial Act when it failed to file an indictment within thirty days from the date on which the defendant was arrested -- which in Mathurin’s case was the date on which he was transferred from juvenile to adult status.
The government claimed that the thirty-day period was tolled because during this period the parties were engaged in plea negotiations. The Court rejected this argument, pointing that 18 U.S.C. § 3161(h)(1)’s tolls the period during which a court considers a plea agreement, but does not automatically toll periods during which plea negotiations are happening. The Court declined to include plea negotiations within the "ends of justice" catch-all of the Act, noting that plea negotiations are controlled by the parties, not the court, and this catch-all was aimed at delay attributable to court inaction. The Court rejected the argument that Mathurin waived the Speedy Trial claim because he failed to raise it prior to the filing fo the indictment. The Court noted that the Act only requires the defendant to move for dismissal prior to trial, or entry of a guilty plea. The Court rejected the argument that defense counsel "sought the pre-indictment delay," noting that a party could not control the running of the act, which is designed to advance the public’s interest in speedy trials.
The Court remanded the case to the district court for a determination whether the indictment should be dismissed with, or without, prejudice.

Broughton: Insurance Fraud convictions affirmed

In U.S. v. Broughton, No. 10-15527 (Aug. 10, 2012), the Court affirmed convictions for fraud and money-laundering in connection with a scheme involving fraudulent capitalization of purported insurance companies.
The Court rejected the argument that the statute of limitations barred the prosecution. The Court pointed out that, pursuant to 18 U.S.C. § 3292, the district court had suspended the running of the statute of limitations because the government had filed a notice that an official request for evidence had been made from a foreign country. The Court rejected the argument that the statute of limitations should not have been suspended because the government knew of the conspiracy before sending its official requests to Costa Rica and Panama, or that the conspiracy had terminated before the Government requested the statute of limitations be tolled, or that none of the evidence requested was needed at trial. None of these matters were needed to satisfy the conditions of § 3292.
The Court also rejected the argument that even with a suspension of the limitations period, the criminal action was untimely because it was filed more than five years after the completion of the conspiracy. The Court pointed out that within the limitations period Broughton wrote "placatory" letters to victim-investors, urging "continued patience" with what was a fraudulent scheme. This was a "continuing execution of a conspiracy to defraud." Alternatively, the Court found that if the suspension time was factored in, the indictment was timely.
The Court rejected challenges to the sufficiency of the evidence, pointing to the evidence of a fraudulent conspiracy, and to the fact that the jury could have disbelieved Broughton when he testified in his defense at trial. Finally, the Court rejected challenges to the sufficiency of the evidence supporting money-laundering convictions, noting evidence that cash was transported to the Cayman Islands and stuffed under a mattress.

Blanco: Counsel knew of plea deals

In Blanco v. Sec., Fla. Dep’t of Corrections, No. 11-11993 (July 31, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1982 murder.
The Court rejected the argument that the defendant’s appointed mental expert was incompetent when he testified on the defendant’s behalf. The Court pointed out that at the penalty phase the defendant did not ask to halt the hearing and grant a new proceeding based on his psychiatrist’s incompetence.
The Court also rejected the claim that counsel was ineffective for failing to inform the defendant of an offer that he plead guilty and received a life sentence, with a possibility of parole after 25 years. The Court found that the record was replete with evidence that Blanco understood the plea deal. In addition, the plea deal required Blanco to admit to the killing, which he was unwilling to do.
Turning to Blanco’s claim of a Brady violation, the Court disagreed with the district court that this claim should be evaluated under the demanding standard for claims raised in "second or successive" habeas petitions, because, although Blanco raised it in his second § 2254 petition, and had not raised it in his first § 2254 petition, his first § 2254 petition had been successful. Therefore, the current § 2254 petition was the first to challenge the intervening judgment. On the merits, though, the Brady claim failed. Blanco claimed that the State failed to disclose the plea deals it had with co-defendants. The Court found that the record showed that Blanco’s counsel was aware of the deals.

Kormondy: No Conflict of Interest by Trial Counsel

In Kormondy v. Sec., Fla. Dep’t of Corrections, No. 11-15001 (July 31, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a July 1993 murder.
The Court rejected the argument that Kormondy’s trial lawyer should have withdrawn because she had been a high school classmate of the murder victim, finding no evidence that the lawyer was "actively representing conflicting interests."
The Court also rejected the argument that, at the penalty phase, counsel was ineffective for failing to put on evidence of the defendant’s impoverished upbringing and years of alcohol and drug abuse, in addition to evidence that he was not the "shooter." The Court noted that the aggravating factors were not weak (the murder victim’s wife was raped as he was killed), and evidence of drug addition is a "two-edged" sword.
Finally, the trial court did not violate Kormondy’s constitutional rights when it sustained a prosecution objection to a question of the wife of the murder victim. The Court took judicial notice of the proposition that courts uniformly require a cross-examiner to put a question to the witness and obtain an answer before confronting the witness with a previous inconsistent answer. This did not occur at Kormondy’s trial.

Liberse: Defendant Eligible for Amendment 750 reduction

In U.S. v. Liberse, No. 12-10243 (July 30, 2012), the Court held that a crack cocaine offender was eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 750 to the Sentencing Guidelines, even though the defendant had been subject to a mandatory minimum punishment.
Liberse’s guideline range for his crack cocaine offense, at a criminal history of IV, was 121-151 months. The mandatory minimum punishment of 120 months therefore did not directly affect his sentence. After the sentencing court imposed a 121-month term of incarceration, the government moved for a Rule 35(b) "substantial assistance" sentence reduction. The district court reduced the sentence to 97 months. Thereafter, Liberse sought a reduction pursuant to Amendment 750. The district court denied the motion, reasoning that Liberse remained subject to the same 120-month statutory mandatory punishment, which the Sentencing Commission lacked authority to reduce.
Reversing, the Court noted that Liberse was not sentenced based on the 120-month mandatory minimum, but at the low end of his original guideline range of 121-151 months.
The Court noted that it was not clear, after the Fair Sentencing Act, what the statutory mandatory minimum was. If the FSA applied to Liberse – he was sentenced before the FSA took effect, so Dorsey v. United States (FSA applies to defendants sentenced post-FSA) does not apply to him – his mandatory minimum would be 5 years, but if the FSA did not apply, his mandatory minimum would remain 10 years. Regardless of whether the FSA applies, Amendment 750 lowers Liberse’s sentencing range. Further, because Liberse received a Rule 35(b) substantial assistance reduction, the Guidelines provide that a comparable reduction based on a retroactive amendment "may be appropriate."
The Court left it to the district court to decide in the first instance whether the FSA applied to Liberse, noting that it was considering the same issue in a pending case, U.S. v. Hippolilyte, No. 11-15933.

Smith: Consent to search were police were not acting "flagrantly"

In U.S. v. Smith, No. 10-15929 (July 23, 2012), the Court rejected the challenge by a defendant convicted of distributing child pornography that the police violated his Fourth Amendment rights when they entered and searched his house without a warrant.
The police, suspecting that Smith had child pornography on his laptop consumer, went (without a warrant) to his house in Sebastian, Florida. They knocked loudly on the door. No one answered. A neighbor told them that "Smith was feeling some sort of depression." To ensure Smith’s well-being, the police entered his house through an unlocked sliding glass back door, with guns drawn, pointing down. Smith was laying naked on an inflatable mattress. The police holstered their weapons. Smith asked them to step outside while he got dressed. The police stepped outside, where Smith joined them. The police then discussed whether Smith had child pornography in his residence. Smith offered to show police his laptop. The police followed Smith inside the house, where they saw a computer with an active peer-to-peer program, downloading and uploading child pornography. Smith later that day confessed to possessing child pornography.
Prior to trial, Smith moved to suppress his confession and all evidence seized from his computers as "fruits of the poisonous tree" – the illegal search of his house. The district court denied the motion to suppress.
Affirming, the Court assumed arguendo that the officers’ "welfare check" entry into Smith’s home violated the Fourth Amendment. However, the Court found that the subsequent consent to search was voluntary. The Court recognized that the record did not show how much time elapsed between the entry and the consent. But the intervening circumstances – the fact that the police left the house when Smith asked to get dressed, and that there was no evidence of coercion (although police did not inform Smith that he could refuse consent to a search), indicated that there was no "flagrancy" in the police’s conduct. The Court noted that Smith had presented no evidence to rebut the officers’ claims that they went into the house to check on his welfare. Therefore, the search did not violate the Fourth Amendment.

Glover: Defendant not eligible for crack Amendment reduction

In U.S. v. Glover, No. 12-10580 (July 11, 2012), the Court held that a defendant was ineligible for a sentence reduction pursuant to Amendment 750 of the Sentencing Guidelines which, effective, November 1, 2011, reduced offense levels for crack cocaine offenses.
The Court rejected the government’s argument that the appeal was untimely, pointing out that Glover’s pro se motion for reconsideration of the district court’s denial of his motion for sentence reduction under 18 U.S.C. § 3582(c)(2) tolled the deadline for filing a notice of appeal.
Turning to the merits, the Court noted that under the Guideline commentary to U.S.S.G. § 1B1.10, a defendant can only receive a sentence reduction based on a Guideline amendment if the amendment "actually lowers the Guideline range." Glover’s original sentence was based on a mandatory minimum that "trumped" the Guidelines range. Therefore he was not eligible for a reduction.
The Court also rejected Glover’s argument that he was eligible for a sentence reduction because his sentence was based on a sentence reduction for "substantial assistance." The Court determined that Glover’s original Guidelines range was the statutory maximum, not the sentence after reduction for substantial assistance. Therefore, the crack cocaine Amendment did not actually lower his Guideline range and make him eligible for a sentence reduction.

Early: Affirming upward sentence variance

In U.S. v. Early, No. 10-15537 (July 11, 2012), the Court affirmed a 210-month sentence on a defendant convicted of robbery of two banks using fake bombs.
The Court noted that the Guidelines range was 79-97 months. The Court nonetheless rejected a substantive reasonableness challenge to the 210-month sentence, pointing out that Early had spent much of his adult life in prison, for "multiple" offenses. The Court also noted that Early’s use of fake bombs created "terror" for tellers and customers. In addition, the sentence was below the 900-month statutory maximum for the offenses.
[Concurring, Martin, J., noted the Eleventh Circuit’s failure to exercise "similar deference" when reviewing sentences in which the district court granted a downward variance.]

Sochor: Not Prejudiced by Counsel's Ineffectiveness

In Sochor v. Sec. Dep’t of Corrections, No. 10-14944 (June 27, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1981 murder.
The Court found that even if Sochor’s counsel was ineffective at the penalty phase, Sochor was not prejudiced by this ineffectiveness. The Court noted that the aggravating circumstances were that Sochor chocked his victim to death with his bare hands, causing a slow and painful death. In addition, the murder was in the course of kidnaping. The aggravating circumstances so outweighed the mitigating circumstances not presented regarding Sochor’s impairment at the time of the murder, and his manic depressive personality. Moreover, the jury heard evidence at the penalty phase of Sochor’s severe beatings as a child. Consequently, there was no reasonable probability of a different outcome.

Rojas: Confirming Dorsey on FSA

In U.S. v. Rojas, No 10-14428 (July 2, 2012), the Court, having held the issue in abeyance en banc, held that in light of the Supreme Court’s recent decision in Dorsey v. U.S., the more lenient mandatory minimums of the Fair Sentencing Act apply to all defendants sentenced after August 3, 2010, when the Act took effect. The Court therefore remanded the cases for re-sentencing consistent with Dorsey.

Daniels: Government need not show defendant knew age of minor prostitute

In U.S. v. Daniels, No. 10-14974 (July 2, 2012),
the Court affirmed the convictions and sentence of a defendant convicted of inducing a minor to engage in prostitution in violation of 18 U.S.C. § 2422(b) and transporting an individual in interstate commerce with the intent that she engage in prostitution, in violation of 18 U.S.C. § 2421-22.
The Court rejected the argument that the mere fact that a person came to work for the defendant as a prostitute did not suffice to show that he “induced” prostitution for purposes of § 2422(b). The Court noted that induce merely means to cause.
On an issue of first impression, the Court held that the jury need not be instructed that, in order to establish a § 2422(b) violation, the government must prove that a defendant knew that a victim had not attained the age of 18 . The Court adopted Justice Alito’s view in his concurring opinion in Flores-Figueroa v. U.S., that context determines whether a mens rea applies to an element of the offense, and the view of six circuits that had addressed the issue. The context here was Congress's protection of minors. “A defendant such as Daniels who lures and encourages children into these activities does so at this own peril, regardless of what the victim says [about her age] or how she appears.”
Turning to sentencing, the Court rejected the argument that it was unreasonable to run Daniels’ sentences consecutive to an undischarged term of 420 months imprisonment for another sentence in Michigan. The Court noted that the conduct in Michigan was not part of the relevant conduct for the latest offense, and the district court therefore acted within its discretion in imposing a consecutive 78-month sentence. The Court also affirmed the imposition of a 25-year term of supervised release.

Haile: No Constructive Amendment

In U.S. v. Haile, No. 10-15965 (June 29, 2012), the Court affirmed drug trafficking and firearm convictions, in a case arising out of a reverse sting involving five kilos of cocaine, 1,000 kilos of marijuana, and several firearms.
The indictment incorrectly conflated the "during and in relation to" and possesses "in furtherance of" elements of a violation of 18 U.S.C. § 924(c). The Court rejected the defendants’ challenges based on this error. The Court noted that "minor deficiencies" in an indictment do not render it constitutionally deficient, and here the indictment expressly referred to § 924(c), thereby putting the defendants on notice of the charge. In addition, the trial court’s decision to drop part of the language of the indictment and to instruct the jury only on the "possesses in furtherance" prong of the statute was not an impermissible amendment, because the dropped "during and in relation to" was not necessary for a conviction.
The Court also rejected the argument that the trial court incorrectly failed to instruct the jury that it had to find that the defendants knew that the gun they possessed had the characteristics of a machine gun. The Court explained that, under U.S. v. O’Brien, the government was required to prove that the firearm was a machine gun – this fact was not a mere sentencing factor. However, O’Brien did not require proof that the defendant knew that the gun was a machine gun.
The Court held that 18 U.S.C. § 922(k), which criminalizes possession of a firearm with an obliterated serial number, requires proof that the defendant knew that the serial number was obliterated. The Court agreed with the defendant that the evidence was insufficient to prove this knowledge. While the defendant discussed guns in general before the arrest, and the gun was found in his flatbed truck, the government put forth no evidence that he actually possessed the gun for any significant length of time.
The Court rejected the argument that the trial court erred in refusing to instruct the jury that the defendant should be acquitted on account of the "outrageous government conduct" in connection with the reverse sting operation. The Court noted that there was no precedent holding that outrageous government conduct could constitute a defense for a jury to consider; consequently, the trial court did not abuse its discretion.
Turning to sentencing, the Court rejected the Eighth Amendment, "substantive unreasonableness," and "sentencing manipulation" challenges to a within-guideline sentence of 438 months.

Merrill: Fraudulent Chinese Ammunition Sales

In U.S. v. Merrill, No. 11-11432 (June 27, 2012), the Court affirmed convictions for conspiracy to commit false statements, major fraud, and wire fraud against the United States, in violation of 18 U.S.C. § 371, and for major fraud and wire fraud, in violation of 18 U.S.C. § 1031, 1343. The charges arose out of sales of Chinese ammunition to the United States Army in contravention of a contract that prohibited the delivery of weapons acquired, directly or indirectly, from a Communist Chinese military company.
The Court rejected the argument that the sale did not violate the contract because the ammunition had been acquired from China before the United States law prohibited purchases of ammunition from Chinese companies. The Court noted that the prohibition encompassed pre-prohibition ammunition.
The Court held that the trial court did not err when it excluded evidence, proffered by the defense, that the government knew the Chinese origin of the ammunition it was purchasing. Citing the holding in U.S. v. Neder, 197 F.3d 1122 (11th Cir. 1999) that a false statement can be material even if the decision maker knew it was false, the Court rejected Merrill’s argument that "a lie is only a lie if it works."

The Court rejected the argument that the district court should not have admitted admissions made during "plea negotiations," pointing out that Merrill had not been charged with any crimes at the time of his discussions with government officials, and that no specific promises of leniency were made.
The Court rejected the argument that the government should have produced government agents’ handwritten notes taken during interviews of Merrill. The Court held that agents’ accounts of Merrill’s testimony were not "transcriptions of Merrill’s words," and therefore not subject to production under Fed. R. Crim. P. 26.2(a).
The Court held that the district court did not err in declining to grant a defense witness use immunity, pointing out that only the Executive Branch can grant use immunity.

Booker: No instruction required when defendant is eligible for parole

In Booker v. Sec., Fla. Dep’t of Corrections, No. 10-14966 (June 19, 2012), the Court denied habeas relief to a Florida death row inmate.
Booker pointed out that during deliberations over whether to sentence him to death, the jury asked whether, if it were to impose a sentence of life with the possibility of parole after serving 25 years, the defendant would get credit for time served. The trial court declined to answer the question. The jury then voted to sentence Booker to death.
In his habeas petition, Booker argued that the district court should have instructed the jury that, because of other consecutive sentences, he was "functionally" barred from ever being paroled. The Court recognized that in Simmons v. South Carolina, the Supreme Court held that in some circumstances a jury must be informed of a defendant’s parole ineligibility. The Court held that Simmons did not clearly govern when, as with Booker, the defendant is statutorily eligible for release on parole.

Jimenez: No "grouping" for illegal reentry and firearm possession

In U.S. v. Jimenez-Cardenas, No. 11-14651 (June 22, 2012), the Court rejected the argument that the district court misapplied the Sentencing Guidelines when it declined to group Jimenez’s convictions for illegal reentry under 8 U.S.C. § 1326(a) with his 18 U.S.C. § 922(g)(5) firearm convictions.
The grouping rules, U.S.S.G. § 3D1.2, provide that offenses should be grouped together when they involve substantially the same harm. But different "societal interests" are harmed by illegal reentry and illegal possession of a firearm. The offenses involve different conduct. No aspect of one offense served as the basis for a sentence enhancement of the other offense.

Pena: Deficient MARPOL survey conviction affirmed

In U.S. v. Pena, No. 10-15928 (June 20, 2012), the Court held that the United States has jurisdiction to prosecute a surveyor for violating statutes and regulations implementing the International Convention for the Prevent of Pollution from Ships (MARPOL), in the inspection of a ship under the flag of another nation, docked in the United States.
Reviewing a challenge to the sufficiency of the indictment raised for the first time on appeal, the Court found no actual prejudice from any deficiency in the indictment. The Court rejected the argument that the indictment failed to adequately describe the nature of the ship "survey" MARPOL requires.
The Court also rejected a challenge to the sufficiency of the evidence, pointing out that Pena admitted that he not tested an oily water separator because he knew the separator was not working, yet issued a certificate which noted no deficiencies.

House: Affirming Unconstitutional Seizure Convictions

In U.S. v.House, No. 10-15912 (June 20, 2012), in a 70-page opinion, the Court affirmed some convictions and reversed others, in a case involving a former officer of the Federal Protective Service pulling over motorists for unwarranted traffic stops in violation of the Fourth Amendment right to be free from unreasonable seizures, in violation of 18 U.S.C. § 242, and filing false incident reports, in violation of 18 U.S.C. § 1001.
The Court rejected challenges to the sufficiency of the evidence regarding the § 242 violations. The Court found that the government presented testimony establishing that House lacked probable cause to stop the motorists. In addition, House acted "under color of law," because he was wearing his uniform, and identified himself as a federal officer.
The Court also rejected challenges to the sufficiency of the evidence supporting the false statement convictions, citing the testimony of House’s supervisor that incident reports are use to initiate criminal prosecutions, and it is "very important" that a report "include truthful information in relation to all of the facts of the case."
The Court held that a jury instruction that told the jury that it could find a seizure to be "unreasonable" solely because the officer did a traffic stop without jurisdiction or authority was erroneous. However, the error was harmless as to a number of counts. As to these counts, the jury convicted House of making false incident reports, thus rejecting House’s view that he had probable cause to make the traffic stops.

Welch: Consent to search voluntary

In U.S. v. Welch, No. 10-14649 (June 13, 2012), the Court rejected a Fourth Amendment challenge to a search, and held that Welch’s prior conviction for robbery qualified a "violent felony" for purposes of the Armed Career Criminal Act ("ACCA").
Looking for a suspect in an armed robbery, two days after the robbery, but without search or arrest warrants, police knocked on the door of an apartment where the suspect was said to reside, entered with guns drawn and found Welch (not the suspect) "smoking a ‘joint’ and minding a baby." Police asked Welch if they could search his apartment. He initially refused, but a few minutes later consented. The police found a pistol. Welch admitted that it was his.
Rejecting Welch’s argument that the pistol and Welch’s admission were the fruits of an unlawful search, the Court found that Welch had voluntarily consented to the search. The Court noted that Welch "must not have left coerced into consenting when [police] first asked, because he declined to consent... A person who actually says ‘no’ has not been coerced into saying ‘yes.’"
The Court found that Welch consented after police told him that they would get a search warrant and this "would take a while." Welch’s consent was not coerced, just constrained, by having to place his bet on one of two poor alternatives: either police would get the search done quickly and fail to notice his pistol, or if he put them to the trouble of getting a search warrant, they would search more thoroughly because he had inconvenienced them.
Turning to sentencing, the Court recognized that at the time of Welch’s prior Florida robbery, the Florida courts were divided as to whether a "snatching" amounted to robbery. But even assuming only a "snatching," the Court found that a "victim’s natural reaction is likely to be to try to hold on to his or her money or property, leading in many cases to serious injury." The offense therefore qualified under ACCA’s "residual clause," which provides that prior felony is a "violent felony" if it involves a serious risk of physical injury.

Lucas: Reservations about Death Penalty remains grounds for peremptory challenges

In Lucas v. Sec. Dep’t of Corrections, No. 08-15761 (June 8, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1976 murder.
The Court found that Lucas had failed to raise in state court proceedings his claim that the prosecution’s failure to disclose a rebuttal witness violated his confrontation clause rights. This claim was therefore procedurally barred. Even on the merits, the claim would have failed, as rebuttal witnesses are not subject to the pretrial disclosure requirement.
The Court also rejected the claim that counsel was ineffective for failing at the sentencing phase to negate the application of the heinous, atrocious and cruel aggravator. The Court noted that the evidence of the "beating" of the victim made it unlikely that additional evidence would have changed the outcome.
The Court rejected the challenge to the prosecution’s use of peremptory challenges to remove jurors who expressed reservations about the death penalty. The Court noted the absence of "clearly established" Supreme Court caselaw barring the use of peremptory challenges based on opinions regarding the death penalty.

Diaz: Inmate in Federal Prison not "in custody"

In Diaz v. State of Florida Fourth Judicial Circuit, No. 10-15202 (June 11, 2012), the Court affirmed the denial of habeas relief to a defendant who had completely served the sentence imposed by the state court and therefore was no longer "in custody."
Diaz was subject to two sentences, one imposed in federal court to run concurrently to any sentence imposed in state court, and one imposed in state court, to run consecutively and prior to the federal sentence. When Diaz finished serving his state sentence in state custody he was transferred to federal custody to finish serving his federal sentence. When in federal custody, Diaz filed a habeas petition challenging the constitutionality of his state convictions.
The Court held that because Diaz had fully served the state sentence he was no longer "in custody" for habeas purposes. The Court distinguished other cases in which an inmate was allowed to challenge a prior conviction when he serving the latter of two consecutive sentences imposed by the same sovereign. In those cases, an error in the first sentence would delay the start of the latter sentence. But here, Diaz was serving his federal sentence, and the federal government is "generally not required to credit any portion of a prisoner’s time served in state custody."

Cortes-Salazar: Padilla-Reyes remains binding

In U.S. v. Cortes-Salazar, No. 11-11428 (May 30, 2012), the Court held that a prior conviction for a "lewd assault act," in violation of Fla. Stat. § 800.04, qualified as "crime of violence" under U.S.S.G. § 2L1.2, and therefore supported the 16-level enhancement the district court imposed on a defendant convicted of illegal re-entry after deportation.
The Court noted that it had previously held in U.S. v. Padilla-Reyes that a prior conviction under Fla. Stat. § 800.04, with or without victim contact, qualified as an "aggravated felony" for purposes of § 2L1.2 and therefore supported a 16-level enhancement. The Court recognized that the Guideline definitions had changed since Padilla-Reyes. The Court also noted a number of cases decided subsequent to Padilla-Reyes. However, the Court rejected the defendant’s arguments that these changes in the law undermined the viability of Padilla-Reyes, and determined, to the contrary, that Padilla-Reyes "remains binding precedent."

Kendrick: No vindictive prosecution after acquittal

In U.S. v. Kendrick, No. 11-12620 (June 1, 2012), http://www.ca11.uscourts.gov/opinions/ops/201112620.pdfthe Court rejected challenges to a conviction for alien smuggling for commercial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii).
Kendrick had been acquitted, at a prior trial, of importing 900 pounds of marihuana into the United States. In his defense at this earlier trial, Kendrick testified that he went to the Bahamas not to bring back marihuana, but aliens. The government thereafter indicted Kendrick of smuggling illegal aliens, and he was convicted. On appeal, Kendrick claimed that he was the victim of vindictive prosecution after his acquittal. Rejecting this claim, the Court noted that the new indictment did not state heightened charges (the maximum penalties for alien smuggling are less than marihuana importing). Moreover, the government explained that until Kendrick admitted at trial having smuggled aliens, it did not have sufficient evidence to charge Kendrick for this offense.
The Court also rejected Kendrick’s challenge to the sufficiency of the evidence, pointing out, inter alia, that Kendrick fled the Coast Guard when a vessel approached his vessel.
The Court also affirmed the district court’s exclusion of evidence that Kendrick had been acquitted of the prior marihuana charge. The Court pointed out that an acquittal is hearsay. The Court also noted that the marihuana charge was irrelevant to alien smuggling.
The Court also rejected the argument that a portion of the prosecutor’s closing argument in the first trial should have been admitted at the second trial. In his closing, the prosecutor stated that the $25,000 Kendrick received was for the risk of smuggling drugs, not aliens. The Court found that this evidence would have “confused” the jury.