Melgen: Upholding Medicare Fraud Convictions Over Multiple Challenges

In United States v. Melgen, No. 18-10991 (July 31, 2020) (Grant, Martin, Lagoa), the Court affirmed the defendant’s Medicare fraud convictions and sentence.

First, the Court rejected the defendant’s argument that the district court erred by giving the pattern instruction on materiality.  The Court rejected the defendant’s reliance on a Supreme Court case addressing the False Claims Act.

Second, the Court found no error in the introduction of summary charts comparing the defendant’s billing to peer physicians.  The charts were admissible under Rule 1006.  The Confrontation Clause did not permit the defendant to cross examine decision-makers about the criteria used to make the charts (namely, the prosecutors).  And no expert witness was required to admit the charts.

Third, the Court rejected five errors about his trial.  First, the district court did not err in admitting evidence of multi-dosing, since it was probative of his profit motive.  Second, no mistrial was required due  to a witness’ false testimony because the court immediately issued a thorough curative instruction.  Third, the court’s refusal to instruct the jury that a sample of patient files was not statistically random did not require a mistrial, because the court instructed the jury to disregard any statements concerning statistical confidence.  Fourth, the district court did not commit plain error by giving the jury unredacted copies of the indictment because the court told the jury that it was not evidence of guilt and there was no potential prejudice.  Finally, no mistrial was required by contact between the government and defense witnesses after the court conducted a hearing and determined that the contact had not been prejudicial or altered any testimony.

Fourth, the Court concluded that sufficient evidence supported the convictions, as the defendant’s argument went to the weight of the evidence.

Fifth, the Court upheld the denial of a motion for new trial based on a Brady violation, which was based on medical testimony by a government witness at sentencing.  This testimony was neither new nor likely to change the outcome of the trial.  And it was merely impeachment evidence, and so not the basis of a new trial under Rule 33. 

Finally, as to the sentence, the Court found no clear error in the loss amount, as the government presented enough evidence that the sample patient group was representative of the defendant’s patient population.  And his below-guideline sentence was not substantively unreasonable.

Smith: Upholding Hobbs Act Robbery Conviction Against Individual Victims and Holding that Section 403 of the First Step Act Does Not Apply Retroactively

In United States v. Smith, No. 18-13969 (July 30, 2020) (Ed Carnes, Luck, Marcus), the Court affirmed the defendant’s Hobbs Act robbery and 924(c) convictions.

First, the Court held that the district court’s finding that a photographic lineup was not unduly suggestive was not clearly erroneous.  And the Court held that admission of the defendant’s rap video at trial did not violate the First Amendment or Rule 403, as it had significant probative value for contested issues of identity and display of a firearm.

Second, as to one Hobbs Act robbery conviction, the Court held that the defendant’s proposed jury instruction about how to satisfy interstate commerce element in the context of an individual (as opposed to a business) was incorrect, because it changed illustrative examples to exclusive examples.  The Court also held that the evidence was sufficient to show that his robbery affected interstate commerce because he stole a thumb drive containing software that the victim used for her business, and that business was engaged in interstate commerce.

Third, and joining other circuits, the Court held that Section 403 of the First Step Act, limiting the stacking of 924(c) convictions, applies only to cases where a sentence has not yet been “imposed.”  And a sentence is “imposed” when the district court enters a final judgment, not when the sentence becomes final on appeal.

Finally, the Court rejected the defendant’s challenges to his 92-year sentence.  It found no Eighth Amendment violation because he robbed four people at gunpoint and caused severe injury to one, and the sentence was below the statutory maximum.  The sentence was also not substantively unreasonable because all but 121 months were mandated by statute, and the court did not abuse its discretion in considering the 3553(a) factors.

Carmichael: Upholding Denial of 2255 Motion Based on IAC

In Carmichael v. United States, No. 17-13822 (July 22, 2020) (Proctor (ND Ala), Wilson, Newsom), the Court affirmed the denial of a 2255 motion based on ineffective assistance of counsel.

The government conceded, and the Court agreed, that counsel performed deficiently by failing to communicate Carmichael’s total 40-year sentence, seek a negotiated plea as requested, or relay 10-year and 20-year plea offers.  However, the Court concluded that Carmichael could not show prejudice because he could not show that he would have accepted the plea offer had it been communicated to him.  The offers were conditioned on his substantial assistance and “super-cooperation,” and Carmichael did not show that he was willing or able to do so before he went to trial and was convicted, or that the government would have deemed his cooperation satisfactory.

Hall: Upholding 40-Year Child Pornography Sentence

In United States v. Hall, No. 18-14145 (July 21, 2020) (Ed Carnes, Rosenbaum, Vinson (ND Fla)), the Court affirmed the defendant’s 40-year sentence for receiving child pornography, an upward variance from a guideline range of 15 years.

First, the Court rejected the defendant’s argument that the sentencing court improperly relied on unreliable hearsay evidence from an earlier sexual abuse case.  The Court concluded that the defendant did “not even come close” to meeting his burden to prove that the evidence was unreliable.

Second, the defendant argued that the district court failed to give notice required by Rule 32(h) before imposing an upward departure.  The Court rejected that argument because the district court expressly imposed an upward variance (not a departure), for which no notice is required.  And the reasons for the sentence above the guideline range were based on the 3553(a) factors, not a departure provision in the Guidelines.  It did not matter that those reasons might have also fit under a departure provision.

Third, the Court concluded that the sentence was not substantively unreasonable.  The Court emphasized that the defendant had engaged in repeated acts of sexual abuse of children over two decades, even after he went to prison for it and was released; he blamed the victims rather than showed remorse; and he inflicted substantial and long-lasting harm to the victims.

Deason: Upholding Enticement and Obscene Transfer Convictions

In United States v. Deason, No. 17-12218 (July 17, 2020) (Ed Carnes, Branch, Tjoflat), the Court affirmed the defendant’s convictions for enticement of a minor and attempted transfer of obscene material.

First, the Court upheld the denial of a motion to suppress statements made by the defendant in his home without receiving Miranda warnings.  The Court concluded that the defendant was not “in custody” based on the totality of the circumstances.

Second, the Court found the evidence sufficient to convict on one of the obscene transfer counts.  The Court rejected the defendant’s argument that the government did not put all of the underlying videos as a whole into evidence, and instead admitted only screenshots from each video and had an agent testify about the contents.  The Court concluded that the evidence admitted was sufficient to establish that the material was obscene; the entire videos were not required.

Third, the Court concluded that the defendant invited any error with respect to the sufficiency of the indictment because the government superseded the indictment in response to the defendant’s specificity objection, and the defendant indicated that the problem had been cured.

Finally, the Court rejected three evidentiary claims under plain error.  First, the defendant argued that various rules of evidence were violated when the government admitted screenshots and testimony rather than the videos themselves, but the Court concluded that the defendant could not show than any error affected his substantial rights because, had he objected, the government would have simply admitted the videos.  Second, the Court concluded that, even if the obscene transfer charges were duplicitous for including multiple obscene images/videos in each count, any error did not affect his substantial rights because the jury would have unanimously agreed that at least one image in each count was obscene.  Lastly, the Court concluded that, for the same reason, the defendant could not show any effect on his substantial rights in failing to give an instruction to cure the duplicity problem.  

Gumbs: Upholding Convictions for Forcibly Assault Federal Officers with a Vehicle

In United States v. Gumbs, No. 18-13182 (July 15, 2020) (Luck, William Pryor, Jill Pryor), the Court affirmed the defendant’s convictions for using a deadly weapon to forcibly assault a federal officer.

First, the Court found no abuse of discretion in refusing to give the defendant’s proposed jury instructions.  With regard to the term “forcibly,” the court’s instruction tracked the language of the federal assault statute, which had a generally understood meaning using basic grade-school grammar.  With regard to “use of a deadly weapon,” the defendant’s proposed instruction relating to a car as a deadly weapon was substantially covered by the court’s instruction, and the court was not required to separately define the word “use” because it has a common meaning.  With regard to the court’s failure to give an instruction on the lesser included offense of simple assault, the Court concluded that there was no way the jury could have found him guilty of assault without finding him guilty of forcible assault.

Second, the Court found no abuse of discretion in the district court’s response to the jury’s question relating to the use of a car as a deadly weapon.  The court repeated the relevant portion of its earlier instruction, which was a correct statement of the law.

Third, the Court found sufficient evidence to support one of his convictions.  The Court rejected the defendant’s argument that he did not direct force against officers next to his car, because he stepped on the gas pedal as officers were reaching inside the car to arrest him.

Martinez: Upholding Guideline Enhancement for Possessing Gun In Connection With Another Felony

In United States v. Martinez, No. 18-12950 (July 14, 2020) (Luck, William Pryor, Jill Pryor), the Court affirmed an enhancement under USSG 2K2.1(b)(6)(B) for unlawfully possessing a firearm with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony.

The issue on appeal was whether the enhancement applied where the defendant plans to trade a gun for drugs in the future.  The Court held that it does where the  defendant “knew, intended, or had reason to believe (rather than hoped, wished, or dreamed) the gun was going to be used to buy drugs, and the sale would have (rather than may or might have) happened but for the defendant’s arrest or something else getting in the way.”  Because the district court in this case found that the defendant to trade his gun for a pound of drugs that he planned to sell, and that finding was not clearly erroneous, the Court upheld the enhancement.

Chalker: Upholding Healthcare Fraud Convictions Over Various Challenges

In United States v. Chalker, No. 18-15102 (July 13, 2020) (Marcus, Wilson, Thapar), the Court affirmed the defendant pharmacist’s healthcare fraud convictions and sentence.

First, the Court found that the evidence was sufficient to support convictions for conspiracy to commit healthcare fraud and substantive healthcare fraud.

Second, the Court found that the indictment tracked the language of the statute and otherwise sufficiently informed the defendant of the charges.

Third, the Court found no error in permitting an FBI forensic accountant to testify as a lay witness because he never gave expert testimony, but rather merely summarized bank/wage records.  The Court also found no error in admitting expert testimony where the government disclosed the substance of the testimony before trial, but swapped out a new expert for the original expert, as there was no showing of prejudice.

Fourth, the Court found no abuse of discretion in denying the defendant’s motion to continue the trial based on defense counsel’s time to prepare and the expert swap.  The Court concluded that there was not enough to show prejudice.

Fifth, the Court found no clear error at sentencing in the loss calculation.  The defendant arguably waived that issue at sentencing.  And, in any event, the trial testimony supported the finding.

Stein: Upholding Restitution Order and Deeming Other Challenges Barred by the Mandate Rule/Law of Case

In United States v. Stein, No. 18-13762 (July 13, 2020) (Marcus, Luck, Ed Carnes), the Court re-affirmed the defendant’s fraud convictions and affirmed an award of restitution.

In a previous appeal, the Eleventh Circuit remanded for the district court consider to reconsider its loss finding with respect to restitution.   The Court held that, on remand, the district court relied on sufficient evidence to establish causation, and the court was permitted to rely on the government’s expert witness.

The Court declined to consider the defendant’s Brady/Giglio challenges to this convictions, or his challenges to the forfeiture order, because those challenges were outside the scope of the limited remand and could have been raised in the initial appeal.  The Court found no exception to either the mandate rule or the law of the case doctrine.  As for the convictions, the Court found that the evidence was neither newly discovered nor material.  As for the forfeiture order, the Court concluded that the defendant was not entitled to raise a new argument just because the judgment was amended for unrelated restitution purposes, and the Supreme Court’s intervening decision in Honeycutt dealt with a distinguishable forfeiture statute.

Ruan: Rejecting Numerous Challenges to Physicians' Convictions for Distributing Opioids

In United States v. Ruan, No. 17-12653 (July 10, 2020) (Coogler (ND Ala.), Wilson, Newsom)), the Court, in a 137-page opinion, affirmed all but one the defendant doctors’ numerous health-care/opioid related convictions.

The Court found sufficient evidence to support convictions for unlawfully prescribing opioids, health care fraud conspiracy, conspiracy to receive kickbacks, mail/fraud wire fraud conspiracy, and RICO conspiracy.  The government’s main expert witness for some of the counts revealed after testifying that he was suffering from early-onset dementia, but the defense could not show plain error because the defense did not ask for that to be disclosed to the jury and the expert was cross examined.  The Court found insufficient evidence for one count of conspiracy to receive kickbacks because the government failed to prove the existence of a “federal health care program” being defrauded.

The Court rejected the defendants’ evidentiary challenges.  The Court found that the admission of information from a state prescription drug database was not hearsay (but rather an opposing party’s statement and business records), and was not testimonial for purposes of the Confrontation Clause.  The Court next found that the exclusion of certain categories of evidence did not violate the defendants’ constitutional right to present a complete defense, despite improper (yet harmless) prosecutorial remarks about one of them.  The Court also found no error in qualifying a government expert and, although the court violated the Confrontation Clause by preventing the defense from eliciting the scope of the expert’s work for the government in the past, that error was harmless.

The Court found no error in refusing to give the defendants’ proposed jury instructions relating to a physician’s conduct under the Controlled Substances Act.  It found that the defendants’ proposed “good-faith” and “drug pusher” instructions were incorrect statements of law.  And it found that the defendants’ proposed negligence-is-not-enough instruction was correct, but its absence did not prevent them from presenting their defense.

As to the defendants’ sentences, the Court first rejected the government’s argument that the purported guideline errors were harmless because, although the court said it would impose the same sentence, it did not sufficiently justify an upward variance from 57-71 months (which would have been the correct range) all the way up to 252 months, and so that sentence would have been substantively unreasonable.  Thus, the Court proceeded to address the guideline issues, but found: no clear error in the drug quantity calculation based on a finding that 10% of the prescriptions were illegal; no clear error in an obstruction enhancement based on false testimony at trial; and, although the court erroneously applied a two-level rather than one-level money laundering conviction enhancement, that error was harmless because it did not affect the guideline range.  As to restitution, the Court found no clear error in awarding a certain percentage of payments that insurers made for the prescriptions.

In re Price: Denying SOS Application Based on Davis and Rehaif

In In re Price, No. 20-12133 (July 7, 2020) (Ed Carnes, Luck, Lagoa), the Court denied a pro se application for leave to file a second or successive 2255 motion based on both Davis and Rehaif.

As for the Davis claim, the applicant challenged his 924(c) convictions predicated on both bank robbery and conspiracy to commit bank robbery.  Although the jury returned a general verdict, and although the Court had not yet determined whether the latter offense remained a “crime of violence” after Davis, it was certain that the jury relied on the former offense, which did remain a “crime of violence” after Davis.  The Court was certain because the district court instructed the jury that it could find him guilty of the 924(c) offense only if it found him guilty of the corresponding bank robbery offense.

As for the Rehaif claim, that decision did not announce a new rule of constitutional law made retroactive by the Supreme Court.  It therefore failed to satisfy the gatekeeping criteria in 2255(h)(2) to file a second or successive 2255 motion.

Harris: Above Guideline Range Sentence in 922(g) Case Was Not Unreasonable

In United States v. Harris, No. 18-15055 (July 1, 2020) (Grant, William Pryor, Jung (MD Fla.), the Court held that the defendant’s sentence above the guideline range was not procedurally or substantively unreasonable.

For the 922(g) offense, the district court accepted the parties’ joint view that the guideline range was 33-41 months, rejecting the probation officer’s view that it was 92-115 months.  However, the court varied upward to 92 months.  On appeal, the Eleventh Circuit held that the district court adequately justified the variance, emphasizing the defendant's criminal history and that the defendant’s firearm possession ultimately led to someone’s death.  The district court also considered the defendant’s salutary post-offense conduct.  No more explanation was required.  The Eleventh Circuit also concluded that the 92-month sentence was not substantively unreasonable because the sentencing court did not abuse its discretion by giving great weight to the seriousness of the offense and criminal history, but less weight to his post-offense conduct.

Cuya: No Right to Discovery Before 2255 Motion is Filed

In Cuya v. United States, No. 18-14380 (July 1, 2020) (Marcus, Wilson, Thapar), the Court affirmed the denial of preliminary discovery motions filed in anticipation of a forthcoming 2255 motion.  Relying on former Fifth Circuit cases, the Court held that the denial of these motions was proper, because a defendant who has not yet filed a 2255 motion is not entitled to discovery.  Only after the 2255 motion is filed may a movant seek discovery based on a showing of good cause.

Clotaire: Upholding Identity Theft Convictions Over Various Evidentiary Challenges, Including Admission of Mug Shot

In United States v. Clotaire, No. 17-15287 (June 30, 2020) (Grant, Rosenbaum, Hull), the Court affirmed the defendant’s identity theft convictions. 

First, the Court upheld the admissibility of surveillance video images used to identify the defendant.  It found that the still images were self-authenticating business records because there was no dispute that the video was a business record.  The Court rejected the defendant’s argument that he had the right to confront the person who pulled the still images from the video, as the still images were not testimonial statements.  And it also held that business record certifications are not testimonial.

Second, the Court rejected the defendant’s argument that he was denied the ability to present a complete defense.  It found that he was able to sufficiently cross examine government witnesses about its initial identification of someone else in the images.  It also found that two emails were properly excluded as hearsay, and the defense failed to try and use them for impeachment, nor did it subpoena the author of one of the emails.

Third, the government conceded that an officer’s testimony about camera distortion was expert testimony, but the Court found no plain error because the witness had specialized knowledge in that area and connected it to his testimony.  And the government was not required to provide advance notice of expert testimony because the defense never asked for it.

Fourth, the Court rejected the defendant’s argument that there was no proper foundation for a government witness’ identification testimony.  It was irrelevant that the witness met with the prosecutors before testifying.  And the defense had an opportunity to cross examine her about that contact.

Fifth, the Court, after a lengthy discussion of precedent, upheld the admission of the defendant’s mug shot so that the jury could compare it to the surveillance video images.  Despite skepticism about the use of mug shots in criminal trials, the Court found that the mug shot was central to the government’s case, which turned on whether the defendant was the one pictured in the surveillance images.  In addition, the parties stipulated that the mug shot was taken on the date of arrest in the instant offense, removing any inference that it was taken from a prior arrest.  Although the photo may have shown him in prison garb and the height markers, the photo did not show a rogue gallery of criminals, it showed the defendant only from the front (not profile), and it removed other administrative prison markings.  Finally, the debate about its admissibility took place outside the jury’s presence, and the government took steps to mitigate the potential prejudice.

Pon: Any Error in Limiting Defense Sur-Rebuttal Case Was Harmless

In United States v. Pon, No. 17-11455 (Ed Carnes, Martin, Rogers (CA6)), the Court affirmed the ophthalmologist defendant’s Medicare fraud convictions.

First, the Court found no abuse of discretion under Daubert when the district court found that the defense expert’s specific medical treatment theory was unreliable, and it therefore limited the expert to testifying about general concepts relating to eye diseases.  The Court concluded that three of the four Daubert factors weighed against the reliability of the expert’s theory.

Second, the defendant argued that the district court erred by allowing the government to present rebuttal evidence showing that he billed Medicare for providing certain services to one patient, and then limiting the defense’s surrebuttal evidence about that treatment of that patient.  After a lengthy discussion of preservation rules and the importance of harmless error, the Court held that, even if the district court erroneously limited the scope of the defense’s surrebuttal case, and that error violated his Sixth Amendment right to present a complete defense, that error was harmless given the overwhelming evidence of guilt that was unrelated to the error.  In response to the dissent, the Court emphasized that there were numerous Supreme Court and Eleventh Circuit precedents finding harmless error in the face of overwhelming evidence.

Third, as to sentencing, the Court concluded that the district court based its loss amount finding on specific and reliable evidence, including a spreadsheet showing the claims paid and extensive testimony by a special agent about Medicare data.  However, the Court vacated the sentences because the district court imposed concurrent 121-month sentences on all counts, the low end of the guideline range, but the statutory maximum was 120 months.  The Court remanded so that the district court could modify the sentence structure.

Judge Martin concurred in part and dissented in part.  In her view, the limitation of the surrebuttal defense violated the defendant’s right to present a complete defense.  And, in her view, that error was not harmless.  She emphasized that the Court should be cautious about using harmless error, particularly when based on overwhelming evidence.

Singer: Upholding Illegal Export Conviction and Sentence

In United States v. Singer, No. 18-14294 (June 26, 2020) (Rosenbaum, Jill Pryor, Branch), the Court affirmed the defendant’s conviction and sentence for attempting to illegally export encryption devices to Cuba.

First, the Court found sufficient evidence that the defendant intended to violate U.S. law and took a substantial step towards committing the offense.  As for his intent, and addressing an issue of first impression, the Court agreed with the defendant that the government was required to prove that he was aware of the device’s characteristic that rendered it illegal to export, but the evidence was sufficient to establish that he was so aware given government notices he received as well as his own behavior.  As for a substantial step, the Court concluded that the evidence was sufficient to show that the defendant did more than merely make preparations for the illegal export.

Second, the Court concluded that the district court did not err by refusing to give the defendant’s proposed jury instruction on ignorance of the law.  The district court’s instruction substantially covered the proposed instruction, in that it required the jury to find that the defendant knew his actions violated federal law or regulations, and the defendant’s proposed instruction risked confusing the jury by referring to the concept of “ignorance of the law.”  Nor did the court’s failure to give his proposed instruction impair his ability to present a defense.

Finally, the Court upheld a sentencing enhancement for obstruction because the district court did not clearly err in finding that the defendant committed perjury at trial.  First, the Court determined that the district court sufficiently made its own finding of perjury.  Second, the Court determined the defendant’s false testimony was material because it went to one of his defenses at trial.

Tigua: First Step Act Amendment to Safety Valve Applies Only to Those Adjudicated Guilty After its Enactment

In United States v. Tigua et al., No. 19-10177 (June 26, 2020) (William Pryor, Jordan, Newsom), the Court held—without oral argument—that Section 402 of the First Step Act does not apply to those who were adjudicated guilty before the effective date of the Act, even if they were sentenced after.

Section 402 made the safety valve available to those convicted under the MDLEA.  However, it applies only to “convictions entered on or after” the enactment of the First Step Act.  The Court rejected the defendants’ argument that a conviction was “entered” upon entry of the judgment after sentencing .  Instead, the Court concluded that a conviction is “entered” when the defendant is adjudicated guilty.  To reach that conclusion, it contrasted the language used in Sections 401 and 403.  And it rejected the defendants’ reliance on the Supreme Court’s decisions in Deal and Dorsey. 

Ross: Abandonment of a Place or Thing Goes to Fourth Amendment Merits, not Article III Standing, And so Is Waivable

In United States v. Ross, No. 18-11679 (June 24, 2020) (Newsom)  (en banc), the Court unanimously held that a suspect’s abandonment of a place or thing implicates only the merits of his Fourth Amendment claim, not Article III standing, which is jurisdictional in nature.  As a result, the government can waive an abandonment argument if it fails to properly raise it.  In so holding, the Court overruled contrary circuit precedent.

Judge Rosenbaum concurred: “As the writer of the Sparks opinion [the precedent being overruled], I regret my error and appreciate the Court’s correction of our Circuit’s jurisprudence.”

Caldwell: Upholding Bank Robbery Convictions Over Various Challenges

In United States v. Caldwell, No. 18-13426 (June 24, 2020) (Hull, Jordan, Tjoflat), the Court affirmed the defendant's bank robbery and firearm convictions.

First, the Court affirmed the denial of a motion to suppress identification evidence from a show-up procedure.  The Court held that, even if the show up was unduly suggestive, the district court did not clearly err in finding the identification to be sufficiently reliable based on the totality of the circumstances.  And the defense thoroughly cross examined the witness on her identification at trial.

Second, the Court rejected the defendant’s argument that there was insufficient evidence to establish the bank’s FDIC-insured status.  After reviewing earlier decisions about the type of evidence required, the Court found the evidence sufficient because, although the FDIC certificate pre-dated the robbery by 17 years, the government also called two witnesses whose testimony indicated that the certificate had never lapsed and remained in effect.   

Third, the Court upheld the denial of a motion for new trial based on newly discovered evidence that an FBI agent’s DNA testimony deviated from the FBI’s recommended language about likelihood ratios.  The Court concluded that the defendant failed to show that this new evidence would probably produce a different outcome given the other evidence at trial.

Denson: Section 404 of First Step Act Does Not Require a Hearing with the Defendant Present or Authorize a Plenary Re-sentencing

In United States v. Denson, No. 19-11696 (June 24, 2020) (Hull, Grant, Luck), the Court held—without oral argument—that Section 404 of the First Step Act does not require a district court to hold a hearing with the defendant present before ruling on a motion for a reduced sentence.

In this case, the district court granted the defendant’s motion and reduced his sentence to the low-end of the new guideline range, but it declined to go lower as the defendant had requested.  On appeal, the defendant argued that the court was required to hold a hearing with him present.  Joining the Fifth and Eighth Circuits, the Court rejected that argument after analyzing Section 404(c) and Rule 43.  And because Rule 43 did not require his presence, there was also no due process violation.  

The Court distinguished an earlier precedent involving a re-sentencing proceeding following the grant of a 2255 motion.  In so doing, the Court stated that Section 404 is a “limited remedy,” not a plenary or de novo re-sentencing.  It authorized a sentencing reduction only for counts that are “covered offenses,” and it does not permit courts to “change the defendant’s original guidelines calculations that are unaffected by sections 2 and 3” of the Fair Sentencing Act or “to reduce the defendant’s sentence on the covered offense based on changes in the law beyond those mandated by sections 2 and 3.”

Owen: Rejecting Faretta Claim and Challenges to Seizure of Jail Funds

In United States v. Owen, No. 15-12744 (June 24, 2020) (Jill Pryor, Bill Pryor, Luck), the Court affirmed the defendant’s convictions over a Faretta challenge and rejected his challenges to the court’s seizure of funds from his jail account to pay for appointed counsel.

As to the convictions, the defendant proceeded pro se during two days of trail before pleading guilty.  After analyzing eight factors, the Court concluded that the defendant knowingly and intelligently waived his right to counsel.

As to the jail account funds, the defendant first argued that the court failed to comply with procedural requirements in the CJA before seizing the money from his jail account.  However, because the court gave him notice and an opportunity to be heard before the court directed the money be paid to the Treasury, the Court concluded that any error was harmless.  Second, the defendant argued the court could not direct the funds to the Treasury because he received the money as Social Security benefits.  The Court concluded that, under the CJA, it lacked jurisdiction to address the district court’s administration determination in that regard, and the defendant could not use Rule 41 to circumvent that.

Oliver: Georgia Terrorist Threat Statute Is Divisible

In United States v. Oliver, No. 17-15565 (June 18, 2020) (Wilson, Jill Pryor, Tallman (CA9)), the panel reversed itself following a government rehearing petition and held that the defendant’s Georgia offense for making terrorist threats was a violent felony under the elements clause.

The panel had originally held that the statute was indivisible (and therefore categorically overbroad) because state law was unclear.  This time, however, the Court concluded that the defendant’s record of conviction—specifically, the indictment—made clear that the statute was divisible because it charged only one of the ways to commit the offense, suggesting that the statutory alternatives were elements rather than means.  And the Court concluded that alternative element in question—threatening to commit a crime of violent with the purpose of terrorizing another—satisfied the elements clause.  No case law supported the defendant’s argument that this particular offense encompassed threats to property as opposed to persons.

Judge Tallman concurred, opining that Georgia law made clear that the statute was divisible.

Jones et al.: Addressing Eligibility for Relief Under Section 404 of the First Step Act

In United States v. Jones et al., No. 19-11505 (June 16, 2020) (William Pryor, Grant, Jung (MD Fla)), the Court addressed eligibility for relief under Section 404 of the First Step Act in the context of four defendants, and it ultimately affirmed two orders denying relief and vacated two orders denying relief.

The Court determined that anyone sentenced under 841(b)(1)(A)(iii) or (b)(1)(B)(iii) has a “covered offense.”  It explained: “To determine the offense for which the district court imposed a sentence, district courts must consult the record, including the movant’s charging document, the jury verdict or guilty plea, the sentencing record, and the final judgment.”  Although the Court rejected the “statute of conviction” interpretation of several other circuits, it understood that its interpretation ultimately “arrived at the same end result.”  It rejected the government’s argument that a defendant’s specific drug quantity affected whether he had a “covered offense.” 

However, at the same time, the Court the concluded that courts may still lack authority under 404(b) to reduce a sentence for a “covered offense.”  The Court concluded that a district court is bound by the drug quantity used at sentencing to determine the defendant’s statutory penalties, even if that quantity had been found only by a judge.  And if the statutory range would remain the same based on that drug-quantity finding, the court lacks authority to reduce the sentence.  In effect then, the Court appears to have adopted the government’s conduct-based interpretation to eligibility, but did so under 404(b) rather than 404(a).

Based on those legal determinations, the Court concluded that all four defendants had “covered offenses” because they were originally sentenced under 841(b)(1)(A)(iii) or (b)(1)(A)(iii).  However, it nonetheless affirmed two orders denying relief because the judge-found quantity used at sentencing exceeded the increased thresholds under the Fair Sentencing Act.  The Court vacated two orders because the drug quantity used at sentencing was based on the jury verdict, and thus did not exceed the increased FSA thresholds.  However, because it was not clear whether the district court understood that it had authority to reduce their sentences, the Court vacated those two orders and remanded.

Yarbrough: Reasonable Suspicion Existed to Conduct Protective Sweep of a Home

In United States v. Yarbrough, No. 18-10624 (June 11, 2020) (Branch, Marcus, Ungaro), the Court affirmed the denial of a motion to suppress.

The Court concluded that concluded that, based on the totality of the circumstances, officers had reasonable suspicion to believe that a dangerous person or people could be inside a home, justifying a protective sweep.  Although the officers executed an arrest warrant in the driveway, the Court emphasized that: there were anonymous tips that the house was heavily trafficked and a possible source of drug activity; there were two cars at the residence and four people outside the home;  the defendant’s wife fled inside to the bathroom when the police called her name; and the sweep was immediate, took only a minute, and was limited in scope.

Judge Ungaro dissented, opining that there was no reasonable suspicion to believe that anyone was inside the home.  She emphasized that nothing during the arrest corroborated the anonymous tips, no drugs or weapons were found during pat downs of the men outside, and there was no indication that anyone else was inside.  The sweep, she concluded, was based on speculation rather than any articulable facts.

McGregor: Upholding Admission of Firearm Evidence in Identity Theft Trial

In United States v. McGregor, No. 19-10163 (June 3, 2020) (Marcus, Wilson, Thapar), the Court affirmed the defendant’s identity theft convictions.

On appeal, the defendant argued that the district court abused its discretion by admitting evidence of the defendant’s possession of a firearm.  Rejecting that argument, the Court emphasized that the firearm was highly relevant because that firearm was found in the same closet with PII, thus indicating that the defendant (as opposed to his co-defendant) possessed the PII.  (The Court declined to opine on the alternative relevance theory that guns were “tools of the trade” in fraud cases).  And the government limited the prejudicial impact of the firearm by not telling the jury that the firearm possession was unlawful or that the defendant had prior convictions.  The Court found that possession of a firearm today is not so inherently prejudicial as to necessarily outweigh its probative value.

Andres: Neither Strategy Nor Inadvertence Excuses Failure to Timely File Suppression Motion

In United States v. Andres, No. 19-10823 (Lagoa, Branch, Fay), the Court, without oral argument, affirmed the defendant’s conviction and sentence.

The Court upheld the denial of a motion to suppress.  The Court reviewed for plain error because the defendant failed to timely file his motion, and neither strategy nor inadvertence could excuse that failure.  The Court found  that, based on the particular facts of the case, the officers had probable cause to justify a traffic stop.

The Court upheld the denial of a reduction for acceptance of responsibility.  The defendant proceeded to trial, he argued that he was innocent, and there was no indication that he did so only to preserve a legal argument.  Thus, this was not one of the rare cases that goes to trial in which acceptance remains appropriate.

Bates: Non-Insanity Psychiatric Evidence Rarely Admissible in General-Intent Prosecutions

In United States v. Bates, No. 18-12533 (May 26, 2020) (Huck, Branch, Marcus), the Court affirmed the defendant’s federal assault, drug, and gun convictions.

First, the Court held, in accordance with five other circuits, that federal assault under 18 U.S.C. 111(b) is a “crime of violence” under the elements clause in 924(c)(3)(A).   The Court reasoned that a forcible assault that either involves the use of a deadly weapon or that results in bodily injury qualifies.

Second, the Court found not abuse of discretion in the district court’s exclusion of three types of evidence.  First, the Court found no abuse of discretion in excluding non-insanity psychiatric evidence of the defendant’s mental state at the time he shot an officer.  The Court clarified that such evidence is only rarely admissible to negate mens rea in general intent prosecutions, such as in self-defense cases where the government was required to prove a heightened (and thus more specific) mens rea.  Here, however, the government sought to rebut the defendant’s self-defense claim by showing that he knew the victim was a federal officer, and the psychiatric testimony was irrelevant to that issue but rather impermissibly sought to establish an affirmative defense based on mental incapacity.  Second ,the Court found no abuse of discretion in excluding hospital records showing that the defendant had been the victim of gunshot wounds many years earlier, and there was no evidence explaining how that related to the offense.  Finally, the Court found that the defendant’s statement to an officer was not an “excited utterance” because it was made well after he was in an excited state.

Third, the Court found sufficient evidence that the defendant was not acting in self defendant and knew that he was shooting at officers.  Therefore, the evidence was sufficient to uphold his assault and 924(c) convictions.

Fourth, as to the sentence, the Court held: that Georgia convictions for possession with intent to distribute marijuana qualified under the ACCA and career offender Guideline; that the defendant was not entitled to a reduction for acceptance of responsibility by pleadings guilty two of the five counts; and that his low-end 360-month sentence was not substantively unreasonable.

Finally, the Court held that the defendant’s Rehaif challenge to his indictment was not jurisdictional in nature, and was therefore waived by pleading guilty.  And, as to the voluntariness of the plea, the defendant could not meet plain error to show that, but for his guilty plea, he would have proceeded to trial because he expressed no confusion that he was a seven-time convicted felon.

Benjamin: Upholding Fentanyl Convictions Over Various Challenges

In United States v. Benjamin, No. 18-13091 (May 8, 2020) (Marcus, Ed Carnes, Luck), the Court affirmed the defendant’s convictions for distributing fentanyl.

First, the Court found sufficient evidence that the fentanyl was the but-for cause of the victim’s death, triggering the sentencing enhancement in 841(b).

Second, the defendant argued that the DEA did not criminalize furanyl fentanyl until after he was charged, depriving the court of jurisdiction.  The Eleventh Circuit concluded that his claim was not actually a jurisdictional challenge, but rather a challenge to the sufficiency of the evidence.  And the Court rejected that argument because he distributed a controlled substance analogue.

Third, the defendant argued, for the first time on appeal, that the district court erred by failing to instruct the jury that he had to know that furanyl fentanyl was a controlled substance analogue.  The Court rejected that argument, because the district court instructed the jury on both knowing and willful distribution.  And the jury could find scienter by finding that the defendant knew the identity of the substance he possessed, even if he did not know it was a controlled substance analogue.

Fourth, the Court found that the defendant gave voluntary consent for officers to search his luggage at the airport.  There was no coercion, and the defendant understood his right to refuse.  Although an officer falsely suggested that TSA had found ammunition in his luggage, that ruse did not vitiate the consent because it was limited and came after the consent was given.

Fifth, the Court found no abuse of discretion when the district court declined to investigate juror misconduct.  After the jury returned its verdict, a clerk discovered a list of “30 Dos and Don’ts of Jury Deliberations” in the jury room.  However, there was no evidence that the jury considered extraneous information.  The list was not inherently prejudicial, it did pertain to this particular case, and it was not more likely to lead to a conviction.

Hollis: Upholding Denial of IAC Claim for Failing to Object to Prior Alabama and Georgia Offenses as ACCA and CO Predicates

In Hollis v. United States, No. 19-11323 (May 6, 2020) (William Pryor, Branch, Luck) (per curiam), the Court, without oral argument, affirmed the denial of a pro se 2255 based on ineffective assistance.

The movant argued that his lawyer was ineffective for failing to object to the use of his prior Alabama and Georgia drugs convictions as “serious drug offenses” under the ACCA and “controlled substance offenses” under the career offender Guideline.  The Court ruled that the lawyer was not deficient because those convictions categorically qualify as predicates offenses.

McLellan: Upholding Gun Convictions Over Multiple Challenges

In United States v. McLellan, No. 18-13289 (May 6, 2020) (Boggs (CA6), Ed Carnes, Rosenbaum), the Court affirmed the defendant’s gun convictions and sentences.

First, the Court concluded that an officer did not provide an improper expert opinion when testifying that, based on his experience, there is a relationship between guns and drugs, as this did not require any scientific or specialized knowledge.   The Court also concluded that there was no Rule 403 violation when an officer testified that less than a gram of meth was “sellable” because  the defendant disputed that he knowingly possessed the gun, he argued that it was for personal use, and other items associating with selling drugs were found.

Second, the Court declined to address the defendant’s ACCA challenge because the district court said it would have imposed the same 15-year sentence anyway—by running the 10-year minimum for one count consecutive with a 5-year sentence for a second gun count.  And that ultimate sentence was not substantively unreasonable.

Third, and finally, the Court rejected the defendant’s Rehaif challenge.  Under recent circuit precedent, the indictment’s failure to allege knowledge of status was not jurisdictional; and, under plain error review, the defendant could not show his substantial rights were affected because he had multiple prior felonies for which he served many years in prison.  Thus, there was substantial evidence that the defendant knew he was a felon.  For the same reason, the Court found no reversible error with respect to his guilty plea on a second gun count, as there was no evidence he would have gone to trial had he been properly advised.

Welch:Pre-1997 Florida Robberies Are "Violent Felonies"

In Welch v. United States, No. 14-15733 (May 6, 2020) (Rosenbaum, Tjoflat, Pauley (SDNY)), the Court affirmed the denial of a 2255 motion based on Johnson.

The Court concluded that the movant’s convictions remained “violent felonies” under the ACCA’s elements clause.  The movant argued that his pre-1997 Florida robbery did not satisfy the elements clause because it could be committed by snatching, and the Court’s decision in his direct appeal supported that argument.  The Court disagreed, finding the earlier discussion in his direct appeal to be dicta, and that subsequent circuit precedent in Fritts made clear that all Florida robberies qualified.   The Court also reiterated that Florida felony battery satisfied the elements clause under its en banc decision in Vail-Bailon.

Judge Rosenbam concurred, acknowledging that binding precedent required the result.  However, she wrote separately to argue that Fritts was wrongly decided because, in determining the least culpable act criminalized, it failed to look to the actual state of the law in Florida before 1997 in certain DCAs.

Evans: Emergency Aid Exception Applied Because Officers Could Mistake Dog Whimpering for a Distressed Person

In United States v. Evans, No. 17-15323 (May 6, 2020) (Grant, Rosenbaum, Hull), the Court affirmed the defendant’s conviction and sentence.

The Court upheld the denial of a motion to suppress based on the emergency-aid exception to the warrant requirement.  The main issue was whether it was reasonable for officers to believe that a dog whimpering inside the home could have been mistaken for a person in distress.   Under the totality of the circumstances, the Court concluded that they could, since the officers responded to a 911 call reporting gunshots , the responding officers were informed that the defendant had threatened to kill himself, and the defendant was not cooperative.   The officers were not required to believe the defendant’s girlfriend, who told her the whimpering was from a dog.

As for the sentence, the Court first rejected the argument that an unloaded firearm could not trigger the enhancement in 2K2.1 for possession of a semi-automatic firearm that is capable of accepting a large capacity magazine.  Second, although the defendant argued that there was no evidence he possessed a firearm with an obliterated serial number, the district court was entitled to rely at sentencing on an officer’s contrary testimony and the firearm itself.

Swain: Staying Pending Appeal Preliminary Injunction of Metro West Related to COVID-19

In Swain v. Junior, No. 20-11622 (May 5, 2020) (per curiam) (Wilson, William Pryor, Branch), the Court stayed pending appeal a preliminary injunction directing Metro West to employ various safety measures to protect against spread of the virus and imposing various reporting requirements.

The Court concluded that Metro West is likely to prevail on appeal because the district court committed legal errors in analyzing the plaintiffs’ Eight Amendment deliberate indifferent claim, and little evidence showed that the jail was deliberately indifferent.  The Court also concluded that Metro West would suffer irreparable harm because the injunction deprives it of the discretion necessary to allocate resources to fight the pandemic as it sees fit.  As for the balance of harm and the public interest, the Court acknowledged that the virus posed risks to everyone including inmates, but they did not show irreparable harm that they would suffer without the injunction.  Finally, the Court also observed that the district court likely erred by refusing to address municipal liability and the PLRA’s exhaustion requirement.

Judge Wilson dissented, opining that he saw no abuse of discretion.

Andrews: Upholding Denial of 2241 Challenging BOP Interpretation of Commutation

In Andrews v. Warden, No. 19-2443 (May 5, 2020) (William Pryor, Jill Pryor, Luck), the Court affirmed the denial of a federal prisoner’s 2241 habeas petition.

The defendant challenged the BOP’s re-calculation of his release date after President Obama commuted the “total sentence of imprisonment” that he was “now serving.”  The defendant argued that this commutation also extended to an earlier term of imprisonment that he had completed, not just the term of imprisonment he was currently serving (which included a sentence for violating supervised release of the earlier sentence).  The Eleventh Circuit disagreed.  After a lengthy discussion on the President’s pardon power and other related matters, the Court found that the plain language of the commutation foreclosed the defendant’s argument, and that the BOP’s interpretation of it was entitled to deference.

Judge Jill Pryor concurred only in the result.

Russell: Vacating 922(g)(5) Conviction Based on Rehaif

In United States v .Russell, No. 18-11202 (May 4, 2020) (Wilson, Branch, Restani), the Court vacated the defendant’s 922(g)(5) conviction after trial based on Rehaif.

At trial, the district court excluded as irrelevant the defendant’s immigration file.  That file showed that, although he overstayed his visitor status, a U.S. citizen filed a petition to classify him as her spouse (which was granted), and he sought to adjust his status based thereon.  The first petition was subsequently withdrawn, but it is unclear whether the defendant knew that when he was arrested.  Applying plain error on appeal, the Eleventh Circuit concluded that Rehaif rendered the exclusion of his immigration file an error that was plain.  It also concluded that the defendant had shown that, but for the error, the outcome of the trial would have been different.  The Court reached that conclusion because the defendant had consistently challenged his immigration status throughout the district court proceedings, and the jury did not hear any evidence showing that he believed he was illegally present.  The Court also found that, because this error deprived him of a defense, the fourth prong of plain error was satisfied as well.

Judge Branch dissented, opining that the entire record showed that he knew he was illegally present.  She emphasized that he knowingly overstayed his visa, and he knew that he was already married elsewhere, so he knew that he could not be validly re-classified  as the spouse of a U.S. citizen.

Gomez: Consecutive Sentences Not Substantively Unreasonable

In United States v. Gomez, No. 19-10609 (Apr. 14, 2020) (Rosenbaum, Jill Pryor, Branch) (per curiam), the Court affirmed the defendant’s sentences.

The Court clarified that, where no challenge is made to the district court’s legal authority, the decision to run sentences consecutively is reviewed for abuse of discretion under 3553(a).  The Court found that a 46-month guideline-range sentence for ill re-entry, run consecutively with a low-end 21-month sentence for a violation of supervised release, was not substantively unreasonable.  Based on the particular facts of this case, the Court rejected the arguments that the district court failed to properly consider the deterrent effect of prior sentence for sexual battery or that it was already factored in to his guideline range.

Wild: Victims' Rights Don't Attached Pre-Charge Under CVRA

In In re Wild, No. 19-13843 (Ap. 14, 2020) (Newsom, Tjoflat, Hull), the Court denied a petition for mandamus brought by victims of Jeffrey Epstein.

The Court held, reluctantly, that the rights of victims under the Crime Victims’ Rights Act of 2004, including the right to confer with prosecutors and be treated fairly, do not attach until federal criminal proceedings are initiated.  Here, there was no federal criminal proceeding brought.  So, despite evidence of a secret non-prosecution agreement between the government and Epstein, the victims’ statutory rights were never triggered.  The majority “sincerely regrets” this outcome but thinks it is compelled by the statute Congress wrote.

Judge Tjoflat concurred in full, but wrote separately to explain that allowing victims to sue prosecutors to enforce a right to confer pre-charge would require courts to interfere with the executive’s investigation and prosecution of crimes, and that would raise serious separation of powers problems.

Judge Hull authored a lengthy dissent, opining that the statute confers rights on victims before charges are brought.  She criticized the majority for effectively deprived the victims of any rights at all for the government’s egregious violations in this case.   She and the majority criticized each other for their rhetoric.

Maher: Rejecting Statute of Limitations Argument to Receiving/Concealing/Retaining Government Property

In United States v. Maher, No. 19-10074 (Apr. 8, 2020) (William Pryor, Branch, Luck), the Court—without oral argument—rejected the defendant’s statute of limitations argument.

The defendant was convicted of conspiracy to defraud the United States by committing mail fraud, wire fraud, and receiving/concealing/retaining  government property.  The Court affirmed that conspiracy conviction because, although the defendant argued that he was not timely indicted for receiving/concealing/retaining government property, there was no dispute about the other two objects of the conspiracy, for which the jury found him guilty in a special verdict.

The Court also concluded that the government timely indicted the defendant for receiving/concealing/retaining government property.  Although the defendant focused only on the date he received the property, the alternative means of retaining property rendered it a continuous offense.  And because the government charged the defendant within five years of the last date he retained the property, there was no statute of limitations problem.

Moore: No Plain Error for Shackling and Rehaif Indictment Error Not a Jurisdictional Defect

In United States v. Moore et al., No. 17-14370 (Pauley (SDNY), Rosenbaum, Tjoflat), the Court affirmed the defendants’ gun and drug convictions.

First, reviewing for plain error, the Court held that, although the district court failed to make any security finding for shackling the defendant, there was no prejudice.  There was no indication that the shackles were visible; the jury returned a split verdict; and the defendant was able to participate in the trial.  The Court emphasized that shackling should not be the norm, and it is not difficult for courts to explain why they are needed, but that the defendant failed to object in this case.

Second, the Court rejected the defendants’ arguments pertaining to a jury note expressing concern about their names appearing on the verdict form.  Specifically, the Court rejected the arguments that: the court interrupted a juror attempting to articulate concerns; the court provided a misleading summary of its in camera interview with the jurors; and that the court failed to conduct a Remmer hearing, which is necessary only where there was evidence of external influence on the jury.  The Court provided a roadmap for how district courts should address jury security concerns in the future, which was similar to what the court did here.

Third, and finally, the Court rejected the defendants’ Rehaif challenge to the indictment.   The Court rejected the argument that the failure to track/cite the language of 924(a)(2) was a jurisdictional defect; rather, the Court found that it was the mere omission of an element, which is non-jurisdictional in nature.  Therefore, applying plain error, the Court found that the defendants could not show prejudice because the record reflected that the defendants had served lengthy prison sentences in the past, including for felon-in-possession offenses.

Goldman: District Court Failed to Explain or Support Restitution Award for a Cultural Artifact

In United States v. Goldman, No. 19-11135 (Mar. 25, 2020) (Rosenbaum, Tjoflat, Hull), the Court affirmed the term of imprisonment but vacated the restitution award.

As for the term of imprisonment, the defendant objected to the district court’s valuation of a stolen gold bar for purposes of the guideline governing  theft of cultural artifacts in USSG 2B1.5.  The Court found it unnecessary to address the defendant’s argument because the district court stated that, regardless of the  guideline calculation, it would have imposed the same sentence, and that 40-month sentence was not substantively unreasonable.  Therefore, any guideline calculation error was harmless.

As for restitution, the Court clarified that the fair market value of a unique item lacking actual cash value is determined by its replacement cost.  In this case, however, the district court failed to meaningfully explain how it arrived at its valuation figure, and the underlying evidence was unsubstantiated.  Accordingly, the Court remanded for the district court to ascertain the amount of restitution consistent with its opinion.

Eason: Hobbs Act Robbery Not a Crime of Violence Under Career Offender Guideline

In United States v. Eason et al., 16-15413 (Mar. 24, 2020) (Jill Pryor, Jordan, Walker), the Court held that Hobbs Act robbery is not a “crime of violence” under the career offender guideline in USSG 4B1.2.

The Court joined four other circuits that had concluded that Hobbs Act robbery did not satisfy any of the three possible definitions.  As for the elements clause, which (unlike the elements clause in 924(c)) is limited to force against another person, the Court concluded that Hobbs Act robbery was overbroad because, by its plain statutory language, it could be committed by threats of force against property, not people.  For that same reason, the Court concluded that it did not satisfy the generic definition of “robbery.”  And, finally, the Court concluded that it did not satisfy the Guidelines’ narrow definition of “extortion,” which requires a threat or fear of “physical injury.”

Cingari: No Plain Error in Joint/Several Forfeiture and 2B1.1 Rather than 2L2.1 Applied to Immigration Fraud

In United States v. Cingari, No. 17-12262 (Mar. 17, 2020) (Grant, Jordan, Siler), the Court upheld the forfeiture award and the defendants’ sentences.

As to forfeiture, the defendants, a married couple, argued for the first time on appeal that the Supreme Court’s decision in Honeycutt precluded holding them jointly and severally liable.  However, the Court found no plain error because it was not clear that Honeycutt applied to civil asset forfeiture under 981(a)(1)(C), which independently authorized the forfeiture in this case, and because Honeycutt turned on the employer-employee relationship and did not obviously apply to a husband-wife relationship where there was joint ownership of the proceeds.  In a footnote, the Court noted that the government had attempted to expressly waive this argument, but that did not relieve the defendants of their burden to show plain error.

As to the sentence, the defendants, who were convicted of both mail fraud and falsifying immigration forms, argued that the district court should have applied 2L2.1 instead of 2B1.1.  Although the calculation began with 2B1.1, since that produced a higher offense level, the defendants argued that the cross-reference provision in 2B1.1(c)(3)(C) applied.   Applying circuit precedent, the Court rejected that argument, finding that the heart of the offense conduct was a fraud that more aptly fit 2B1.1 rather than 2L2.1.  The Court also found that this analysis was supported by the commentary governing the cross-reference provision, and there was no inconsistency with the text of the Guideline.  The Court again cast doubt on whether the rule of lenity applies to the Guidelines but found it unnecessary to resolve that issue because the language was not grievously ambiguous.

Martin: No Deficient Performance in Advising Defendant About Immigration Consequences

In Martin v. United States, No. 18-12643 (Feb. 4, 2020) (Pauley (SDNY), Rosenbaum, Tjoflat), the Court affirmed the denial of a 2255 motion based on ineffective assistance of counsel.

The defendant alleged that he would not have pled guilty to access device fraud and aggravated identity theft but for counsel’s erroneous advice about the deportation consequences of his plea.  Specifically, he alleged that counsel failed to advise him that deportation would be mandatory for an aggravated felony conviction, and that counsel informed him that the loss amount would be less than the aggravated-felony threshold.  On appeal, the Court found no deficient performance.  His convictions did not make deportation presumptively mandatory.  And because the deportation consequences were uncertain and subject to an immigration proceeding, counsel was required to advise him only that his pending criminal charges may carry a risk of adverse immigration consequences.  Furthermore, counsel could not have predicted the sentencing court’s loss findings, to which he objected, and the defendant may have had another opportunity to contest them in the immigration proceeding.  Finally, the Court found no abuse of discretion in denying an evidentiary hearing, as the allegations in the 2255 motion were contradicted by the record.

Cabezas-Montano: Upholding MDLEA Convictions and Sentences Over Numerous Challenges

In United States v. Cabezas-Montano et al., No. 17-14294 (Jan. 30, 2019) (Hull, Rosenbaum, Tjoflat), the Court affirmed the defendants' title 46 convictions and sentences in an 80-page opinion.

First, the Court rejected, as foreclosed by precedent, the defendants' argument that the MDLEA was constitutional on various grounds.

Second, the Court concluded that the government met its burden to prove that the vessel was a stateless vessel subject to the jurisdiction of the United States.

Third, applying plain error, the Court rejected the argument that the government purposely delayed presenting the defendants the United States by 7 weeks.  Because this argument was raised for the first time on appeal, there was no evidence to support the assertion that the delay was purposeful or unnecessary.  The Court declined to apply a presume undue delay.  And the Court found that the 48-hour requirement for presentment did not apply in this context.

Fourth, the Court held that binding precedent foreclosed the defendant's argument that the Fifth Amendment prohibited the government from using his post-arrest, pre-Miranda silence as evidence of guilt.

Fifth, the Court found that the evidence was sufficient to support the convictions.

Sixth, the Court found no abuse of discretion in denying a motion for mistrial based on the failure to turn over Brady material because he could not show that the evidence was favorable rather than incriminating.

Seventh, the Court held, in accordance with circuit precedent, that the safety valve did not apply to the MDLEA (before the First Step Act) and that this did not violate equal protection.  The Court again left open whether the safety valve's truthful disclosure requirement violated the right against self-incrimination.

Eighth, the Court upheld the denial of a minor-role reduction to the defendants.  Because they did not identify other participants in the offense, the district court was not required to consider the relative culpability of unknown higher-level co-conspirators who recruited them and organized the offense.

Ninth, the Court found that the district court provided a sufficient explanation of the reasons for its sentence under 3553(c).

Tenth, the Court rejected the defendants' argument that the district court refused to vary downward because they exercised their right to go to trial.

Lastly, the Court found that the defendants' low-end sentences were not substantively unreasonable.

Bane: Affirming Denial of Coram Nobis Challenge to Forfeiture Order Due to Procedural Default

In United States v. Bane, No. 18-10232 (Jan. 24, 2020) (William Pryor, Martin, Sutton (6th)), the Court affirmed the denial of a writ of coram nobis.

After their convictions became final, the defendants petitioned for a writ of coram nobis, challenging their forfeiture judgment in light of the Supreme Court’s ruling in Honeycutt.  Initially, the Court found that the defendants had standing because they were challenging the preliminary (not final) forfeiture order.  As to the merits, the Court assumed, without deciding, that coram nobis could be used to challenge a forfeiture order and that Honeycutt applied retroactively.  The Court affirmed, however, because the defendants procedurally defaulted their claim by not raising it on direct appeal.  The Court found that a Honeycutt error is not jurisdictional because the indictment charged a federal offense; even if the forfeiture allegations were insufficient, that went only to the sentence.   The Court also found that the cause and prejudice exception to procedural default did not apply: they failed to show cause because their claim was not sufficiently novel just because Honeycutt had not yet been decided; and they failed to show prejudice either, as one defendant was responsible for all the proceeds, and the government could have obtained the same property against the other defendant through restitution.

Judge Martin concurred in part and dissented in part, opining that the error was jurisdictional as to one defendant in light of the Supreme Court’s decisions in Welch and Montgomery v. Louisiana.  She reasoned that, as to the one defendant, the forfeiture amount exceeded the statutory limits.

Mancilla-Ibarra: Probable Cause Supported Arrest, and Safety Valve Did Not Apply Based on Failure to Disclose All Truthful Information

In United States v. Mancilla-Ibarra, No. 17-13663 (Jan. 15, 2020) (William Pryor, Jill Pryor, Robreno), the Court affirmed the defendant's drug conviction and sentence.

First, the Court upheld the denial of a suppression motion, finding that probable cause supported the defendant's arrest based on information provided by an informant.  The Court found that, under the totality of the circumstances of that case, the informant's tip was shown to be veritable, reliable, and corroborated.

Second, the Court upheld the refusal to apply a two-level reduction under the safety-valve provision in 2D1.1(b)(17).  At issue was whether the defendant satisfied the fifth criteria for truthfully disclosing all information about the offense.  To show that the defendant failed to do so, the government relied on testimony by an agent with only second-hand information who had no personal knowledge about the defendant's interview.  That equivocal and uncorroborated account was not sufficiently reliable.  However, the defendant bore the burden to prove that he disclosed all truthful information, and the record undermined his assertion that he made only two drug deliveries.

Justos: Naturalization Form Containing Adjudicator's Notes Was Admissible and Did Not Violate Confrontation Clause

In United States v. Santos, No. 18-14529 (Jan. 9, 2020) (Hull, Rosenbaum, Tjoflat), the Court affirmed the defendant's convictions for naturalization fraud.

The Court rejected the defendant's argument that it was error for the court to admit a naturalization application form containing written notations made by the interviewing immigration officer who did not testify at trial.  The Court first found that the form was admissible non-hearsay as an adopted admission by an opposing party, because the applicant adopted the form by signing it at the end of the interview.  The Court also found that the form was admissible under the public records exception to hearsay because it was part of the A-file, immigration officers routinely complete the form during non-adversarial interviews with applicants, and the primary purpose of the form is to administrate the naturalization process, not criminal prosecution.  The Court also rejected the defendant's Confrontation Clause challenge because the application form was not testimonial.  It was a public record produced as a matter of administrative routine for the primary purpose of determination eligibility for naturalization, not for the purpose of criminal prosecution.

The Court also found no abuse of discretion by permitting the government to elicit testimony about the inculpatory portion of a post-Miranda statement but prohibiting the defendant from eliciting further testimony about the exculpatory portion.  The rule of completeness did not apply because the exculpatory part of the statement did not explain or clarify the inculpatory part of the statement.

Finally, the Court found that there was sufficient evidence to support his conviction for unlawfully procuring naturalization, finding that his false statements were knowingly made and material to procuring naturalization.   

Brown: Upholding Dismissal of Juror Based on Religious Beliefs

In United States v. Brown, 17-15470 (Jan. 9, 2020) (Rosenbaum, William Pryor, Conway), the Court affirmed the defendant's convictions.

The main issue was whether the district court abused its discretion by dismissing a juror who told other jurors that the Holy Spirit told him that the defendant was not guilty.  In a lengthy opinion, the Court concluded that there was no abuse of discretion because the district court made a finding that the juror meant that the Holy Spirit told him to acquit regardless of the evidence, not that the Holy Spirit would guide him in his review of the evidence.  The Court also rejected the defendant's arguments that the district court lacked a sufficient basis to inquire into the juror's statements, that the court's inquiry violated Rule 606(b), and that the court's dismissal violated the Religious Freedom Restoration Act, the juror's First Amendment rights, and the Sixth Amendment right to a unanimous verdict.

Judge Conway concurred but wrote separately to emphasize that the majority opinion did not mean that a juror could not use religious beliefs to seek guidance when applying the law to the evidence in the case.  Rather, the Court held only that the district court did not abuse its discretion by finding that the juror was not following the court's direction to consider the evidence.

Judge Pryor issued a 60-page dissent, criticizing the majority for mischaracterizing the juror's comments and for making it too easy to disqualify jurors who hold religious beliefs.

Oliver: Georgia's Terrorist Threats Offense Is Not a Violent Felony Under the ACCA

In United States v. Oliver, No. 17-15565 (Jan. 6, 2020) (Wilson, Jill Pryor, Tallman (9th)), the Court held that a Georgia offense for making terroristic threats is not a violent felony under the ACCA's elements clause.

The Court concluded that the Georgia statute was indivisible under Mathis because the statute, state case law, pattern jury instruction, and record of conviction did not make clear whether the alternatives were means or elements.  Therefore, the Court resolved the inquiry in favor of indivisibility.  And the Court concluded that the statute was categorically overbroad because it could be committed by threatening or burning property, which did not have as an element the threatened use of force against a person.

Judge Tallman dissented.  He agreed that threatening to burn a building did not satisfy the elements clause, but he opined that the statute was divisible based on its structure, state court decisions reflecting charging practices, and the indictment in the defendant's case (which was not in the record but was quoted by the government and PSI).  And he opined that threatening to commit a crime of violence with the purpose of terrorizing another, the section under which the defendant was charged, satisfied the elements clause because it necessarily required a threat against a person.

Hill: Exclusionary Rule Inapplicable in Revocation Proceedings

In United States v. Hill, No. 19-10647 (William Pryor, Jill Pryor, Marcus) (per curiam), the Court held--without oral argument--that the exclusionary rule does not apply in supervised release revocation proceedings.

In so holding, the Court joined six other circuits that have reached that conclusion.  The Court relied primarily on a Supreme Court decision declining to extend the exclusionary rule to state parole revocation proceedings.  The defendant failed to present any argument on appeal for why that decision did not apply equally to the supervised release context.  

Bankston: Selling Body Armor Is Not a "Use" of Body Armor Under USSG 3B1.5

In United States v. Bankston, No. 18-14812 (Grant, Martin, Newsom), the Court vacated the defendant's sentence based on the miscalculation of his guideline range.

Specifically, the Court accepted the defendant's argument, raised for the first time on appeal, that the district court erroneously applied an enhancement for the "use" of body armor under USSG 3B1.5.  The commentary explained that use of body armor required either active employment to protect the person from gunfire, or use as a means of bartering.  The defendant, however, did no more than sell body armor for money, which was different than bartering, as bartering meant trading goods without the use of money.  Finding the language of the commentary clear, the Court rejected the government's reliance on legislative history and purpose.  And having found that the district court committed an error that was plain, there was not dispute that the remaining plain-error prongs were satisfied.

Vineyard: Tennessee Sexual Battery is Covered Sex Offender Under SORNA

In United States v. Vineyard, No. 18-11690 (Dec. 20, 2019) (Julie Carnes, Marcus, Kelly (10th)), the Court upheld the denial of a motion to dismiss a conviction for failure to register under SORNA.

The Court rejected the defendant's argument that his prior Tennessee conviction for sexual battery was not a covered "sex offense" under SORNA, which (as relevant here) required "sexual contact" as an element.  First, the Court held that the categorical approach (rather than a circumstance-specific approach) applied.  Second, the Court held that, based on dictionary definitions and common understanding, "sexual contact" under SORNA meant a touching or meeting of body surfaces where the touching or meeting is related to or for the purpose of sexual gratification.  The Tennessee offense required such contact, and the defendant did not argue otherwise.  Third, the Court rejected the defendant's argument that "sexual contact" under SORNA instead incorporated a broader meaning from an unrelated federal statute.  Finally, even if the Court used that broader meaning, it concluded that the Tennessee offense satisfied it.  The Court rejected as "border[ing] on the absurd" the defendant's argument that the Tennessee offense was overbroad because it required contact with the "primary genital area" rather than just the genitals.  And the Court rejected the defendant's argument that Tennessee case law permitted the contact to be with the lower back or abdomen.