Akwuba: With One Exception, Upholding Pill Mill Convictions Over Various Trial Challenges

In United States v. Akwuba, No. 19-12230 (Aug. 11, 2021) (Wilson, Rosenbaum, Ed Carnes), the Court affirmed, with one exception, the defendant’s convictions for distributing controlled substances and health care fraud as part of a pill mill operation.

First, with one exception, the evidence was sufficient to support her convictions for distribution of controlled substances, conspiracy to distribute controlled substances and to commit health care fraud, and substantive health care fraud.  With regard to one count of substantive health care fraud, the government conceded, and the Court agreed, that the evidence was insufficient because an insurance company not named in the indictment was billed for the prescriptions for that count.

Second, the Court rejected the defendant’s argument that a jury instruction on a disputed factual question effectively directed a partial verdict of guilty.  The instruction did not relate to an element of the offense or any factual question that the jury was required to decide.  And although a closer question, the instruction also did not violate the right to present a defense because, while the judge erroneously told the jury that the parties had stipulated to something they did not, it did not prevent the defendant from presenting her theory of defense to the jury.

Finally, there was no reversible error on three evidentiary rulings.  First, the district court did not reversibly err by preventing the defendant from eliciting testimony that a prescription pad had been stolen, as defense counsel ultimately withdrew that line of questioning.  Second, the district court did not err by limiting a line of cross examination on the government’s expert witness because it did not pertain to the defendant, and there was nothing more to impeach the expert with.  Third, experts did not expressly state opinions regarding the defendant’s mental state, and the likely-irrelevant admission of some testimony about the experts’ personal practices did not rise to the level of plain error.

Harris: Upholding Drug/Firearm Convictions for Corrupt Cops In Face of Multiple Challenges

In United States v. Harris, No. 19-13692 (Aug. 9, 2021) (Jill Pryor, Newsom, Marcus), the Court affirmed the defendants’ drug and firearm convictions stemming from a reverse sting police corruption investigation.

First, there was sufficient evidence to support the defendants’ convictions based on the evidence at trial.

Second, while there was sufficient defense evidence of inducement to permit an entrapment defense to go to the jury, there was nonetheless sufficient evidence that the defendant was predisposed to take part in the conspiracy.  In addition, the defendant challenge the court’s response to the jury’s question about whether the definition of entrapment applied to each count or if it was a single determination.  The court responded that the jury should consider each crime and the evidence relating to each separately.  That was not an abuse of discretion because the evidence of predisposition was not the same for each count.

Third, the defendant was not entitled to a duress instruction because he did not show that he had no reasonable opportunity to escape or inform the police.

Fourth, the district court did not abuse by dismissing the indictment sua sponte based on prosecutorial misconduct because the prosecutor did not knowingly used perjured testimony or fail to correct material false testimony.  The Court found no misconduct at all.

Fifth, with regard to the defendants’ Batson challenge, they failed to make a prima facie case of discrimination.  The defendants argued only that the stricken jury was African American, and they did not believe there was any reason to disqualify him other than race.  Those arguments alone, however, were insufficient to raise an inference of racial discrimination.  The government only struck one African American out of the seven peremptory challenges, it made no objection to the other three African Americans on the panel, and the final jury included two African American jurors.  In any event, there was no error in the district court’s ultimate determination that the defendants failed to establish that the government’s race-neutral reason was pretextual.

Sixth, the prosecutor did not improperly shift the burden of proof or commit misconduct at closing.

Finally, the district court did not commit plain error by failing to sua sponte advise the jury that a read-back of trial testimony was available because there was no precedential decision so holding.  Nor did the defendant show any prejudice from the failure.

Cordero: Upholding Various Challenges to Supervised Release Term and Conditions

In United States v. Cordero, No. 18-10837 (Aug. 4, 2021) (Branch, Grant, Tjoflat), the Court affirmed the defendant’s motion to modify and terminate his supervised release.

First, the district court did not abuse its discretion by entering a sealed order requiring the defendant to disclose information related to the work he performed and by requiring him to disclose his sex offender status to potential clients.  The Court rejected his argument that the order effectively modified his supervision and imposed a new restriction without granting him an evidentiary hearing or making necessary findings.  The district court was merely enforcing a previously-imposed condition of his supervision.  To the extent the defendant sought to challenge the original condition, he failed to appeal it after it was imposed, and any such challenge was barred by a valid appeal waiver.

Second, the district court did not abuse its discretion by denying the motion to modify the conditions of supervised release to eliminate a restriction on internet access.  Although the district court did not explicitly address the 3553(a) factors, the record as a whole supported the conclusion that the district court considered them.  And those factors supported the continued existence of the restriction.  In addition, while the defendant argued that the internet restriction was now unconstitutional in light of the Supreme Court’s decision in Packingham, the Court joined three other circuits in concluding that a defendant cannot challenge the legality or constitutionality of his supervised release conditions through a motion for modification under 3582(e)(2); that argument must instead be raised on direct appeal or in a 2255 motion.  In any event, the Court noted that its recent decision in Bobal foreclosed the defendant’s constitutional challenge.

Finally, the district court did not abuse its discretion in denying the motion for early termination because the record as a whole supported the conclusion that the district court considered the 3553(a) factors.

Carter: One version of Georgia aggravated assault is not an ACCA violent felony post-Borden

In United States v. Carter, No. 17-15495 (Aug. 3, 2021) (Black, Marcus, Restani), the Court vacated the defendant’s ACCA sentence based on a prior conviction for Georgia aggravated assault with a deadly weapon.

Based on the Shepard documents, the Court was required to assume that the defendant was convicted of a version of Georgia aggravated assault that could be committed with a mens rea of recklessness—specifically, committing an act which places another in reasonable apprehension of immediately receiving a violent injury.  Because that offense could be committed recklessly, the Court had previously held in Moss that it was not a violent felony.  And the Court had reaffirmed Moss after the Supreme Court’s decision in Borden confirmed that reckless crimes do not satisfy the ACCA’s elements clause.

Williams: Affirming Convictions for Sex Trafficking and Sentence of Life Imprisonment

In United States v. Williams, No. 19-11972 (July 23, 2021) (Martin, Grant, Brasher), the Court affirmed the defendant's convictions for sex trafficking and sentence of life imprisonment.

Defendant raised three challenges to his convictions: (1) the district court improperly admitted nude images and videos of the victims; (2) there was not enough evidence to show that he had the required mens rea for his crimes against one of the victims; and (3) the district court should have instructed the jury that a victim's consent to perform a sex act is a defense to sex trafficking. 

As to the first argument, the Court only considered whether the images' probative value was substantially outweighed by the danger of unfair prejudice because the defendant conceded that the images were relevant.  The Court found the images and videos were probative and not unduly prejudicial.  Though they were graphic in nature, that was unsurprising given the nature of the alleged crimes.  Additionally, the district court properly cautioned potential jurors during voir dire that they would view evidence of a sexually explicit nature, and seated those jurors who confirmed that this would not impact their ability to be fair and impartial.  

Next, the Court found that the government presented sufficient evidence demonstrating that the defendant knew that one of the victims was a minor at the time he trafficked her.  Similarly, the government introduced sufficient evidence demonstrating that the defendant continued to coerce her to engage in a commercial sex act as an adult.  

Finally, the Court found no abuse of discretion in the district court's denial of defendant's proposed jury instruction because the 11th Circuit has never recognized consent as a valid defense to sex trafficking.  And, in any case, the court's instructions substantially covered the issue.  

The Court also affirmed defendant's sentence of 5 terms of life imprisonment and 240 months imprisonment (all to run concurrent), along with restitution.  As to the restitution amounts, the Court found them properly calculated even though they were government estimates because they were reasonable--supported by credible evidence, including trial testimony.  The Court also held that under the Trafficking Victims Protection Act, a victim is entitled to the "gross income" derived from her trafficking, so no offset for living expenses paid by the defendant was necessary.  Finally, even though one of the victims renounced any restitution award, restitution under the TVPA is mandatory, and therefore, the court must order it.  The Court acknowledged that this holding was contrary to the holding of the Tenth Circuit analyzing similar language in the MVRA.  

The Court also found defendant's life sentences substantively reasonable.        

Dudley: Sentencing Court May Consider Factual Basis for Plea When Conducting ACCA Different-Occasions Inquiry

In United States v. Dudley, No. 19-10267 (July 22, 2021) (Newsom, Branch, Ray (N.D. Ga.)), the Court affirmed the defendant's ACCA-enhanced sentence.  Judge Branch delivered the opinion of the Court, in which Judge Ray joined, and Judge Newsom joined in all but Part III.A.    

On appeal, defendant argued that he was not ACCA because there was insufficient evidence to establish that his prior Alabama felony convictions were for offenses committed on occasions different from one another.  He also argued, for the first time on appeal, that Rehaif necessitated vacatur of his guilty plea to being a felon in possession of a firearm. 

The Court noted that the different-occasions inquiry necessarily requires looking at the facts underlying the prior convictions, but that courts are limited to Shepard-approved sources, as only information found in such conclusive judicial records has gone through a validation process that comports with the Sixth Amendment.  The Court also noted that in determining whether a defendant's prior convictions were committed on different occasions from one another, a district court may rely on non-elemental facts contained in the Shepard-approved sources.  Finally, the Court rejected the argument that judicially determining whether prior convictions were committed on different occasions from one another for purposes of the ACCA violates a defendant's Fifth and Sixth Amendment rights, finding itself bound by its opinion in Almendarez-Torres.     

With the above in mind, the Court found the district court's reliance on dates proffered by the state prosecutor during the plea colloquy for the Alabama offenses proper because, although the defendant did not state expressly during the Alabama plea colloquy that he agreed with the prosecutor's factual proffer, he did not object.  The Court held that, consistent with Shepard, where there is evidence of confirmation of the factual basis for the plea by the defendant--be it express or implicit confirmation--a federal sentencing court is permitted to rely on those facts to conduct the different-occasions inquiry.    

The Court also rejected the defendant's challenge to his guilty plea as foreclosed by binding precedent.  

Judge Newsom concurred in part and dissented in part.  He dissented from Part III.A. of the Court's opinion, rejecting the defendant's challenge to the ACCA enhancement, because, in his view, a federal court may consider a plea-colloquy transcript in determining whether a defendant's prior offenses were committed on different occasions only when the factual basis for the plea was expressly confirmed by the defendant. 

 

Moss: Reinstating Panel Opinion

In United States v. Moss, 17-10473 (July 22, 2021) (en banc), the Court vacated its order granting rehearing en banc, and reinstated the panel's opinion in light of the Supreme Court's opinion in Borden v. United States, 141 S. Ct. 1817 (2021).

The reinstated panel opinion held that Georgia aggravated assault did not satisfy the elements clause of the ACCA because it could be committed recklessly.    

Carrasquillo: Finding "Daylight" Between U.S.S.G. § 2D1.1(b)(1) and § 5C1.2(a)(2)

In United States v. Carrasquillo, 19-14143 (July 14, 2021) (Jordan, Newsom, Tjoflat), the Court affirmed defendant's 60-month sentence for conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. 

Defendant first argued that the district court erred by failing to elicit objections after imposing his sentence, thereby committing Jones error.  The Court agreed that the district court erred, but concluded that remand was unnecessary because the record was sufficient to permit appellate review of the sentencing issue raised.  

Defendant next argued that the district court improperly conflated the standards under U.S.S.G. § 2D1.1(b)(1)--which provides for a two-level increase if a dangerous weapon, including a firearm, "was possessed"--and U.S.S.G. § 5C1.2(a)(2)--the "safety-valve" provision that permits a district court to impose a sentence without regard to an otherwise-applicable mandatory minimum if certain criteria are satisfied, including if the defendant did not "possess a firearm  . . . in connection with the offense"-- when it denied him safety-valve relief after finding that he was subject to a two-level enhancement for possessing a firearm.

The Court agreed that there is "daylight" between the standards under § 2D1.1(b)(1) and § 5C1.2(a)(2).  While a defendant must show that it is "clearly improbable" the gun was connected to the offense to prevent application of § 2D1.1(b)(1), he need only "tip the scale towards improbability--a lighter burden" to qualify for safety valve relief.  The Court also agreed that application of the firearm enhancement does not necessarily preclude safety-valve relief.  But, the Court nonetheless affirmed because, on the record, the district court's factual findings under § 2D1.1(b)(1) foreclosed relief under § 5C1.2(a)(2).  There is overlap between § 2D1.1(b) and § 5C1.2(a)(2), and that overlap results from the common issue of connectivity.  A § 2D1.1(b)(1) factual finding that there is a connection between the firearm and the offense, if supported by the record, means that the defendant cannot satisfy § 5C1.2(a)(2).        

Colston: Affirming Convictions for Possession with Intent to Distribute and Conspiring to Distribute

In United States v. Colston, No. 19-13518 (July 13, 2021) (Grant, Tjoflat, Ed Carnes), the Court affirmed defendant's convictions for knowingly possessing with intent to distribute 2 kg of cocaine, in violation of 21 U.S.C. § 841(a)(1), and conspiring to distribute cocaine, in violation of 21 U.S.C. § 846.  

Defendant walked into a post office, showed a tracking receipt on her phone, and walked out with a package containing roughly $200,000 worth of cocaine.  Unbeknownst to her, however, law enforcement had already flagged the package, and arrested her as soon as she picked it up.  

On appeal, defendant first argued that the evidence was insufficient to support her convictions because the government failed to prove that she specifically knew the package contained cocaine.  Though the government agreed that proof of knowledge of the specific drug was an element of the offense, the Court disagreed, and held that the government need only prove that a defendant knew she possessed a controlled substance, not knowledge of the specific substance she possessed.  The Court clarified that when the government charges violations of § 841(a)(1) and also seeks enhanced penalties under § 846, it needs to prove a defendant's mens rea only for the substantive violation, not for the specific drug charged.  In so holding, the Court clarified that its prior precedent indicating otherwise--United States v. Narog, 372 F.3d 1243 (11th Cir. 2004)--was no longer good law.   

Defendant next argued that the district court erred in giving a deliberate ignorance instruction because there was insufficient evidence to support it.  The Court held that where the evidence introduced at trial is sufficient to support another theory--here, actual knowledge--it need not decide whether the evidence was also sufficient to justify giving a deliberate ignorance instruction.  

Finally, defendant challenged the admission into evidence of her illegal sales of prescription drugs.  The Court found evidence of prior drug dealings to be probative of intent to distribute a controlled substance, as well as involvement in a conspiracy.  And, any probative value was not substantially outweighed by undue prejudice.  

Stancil: Affirming ACCA-Enhanced Sentence Based Upon Virginia Drug Priors

In United States v. Stancil, 19-12001 (July 13, 2021) (Branch, Grant, Tjoflat), the Court affirmed the defendant's ACCA-enhanced conviction and sentence for being a felon in possession of a firearm.  

Defendant was pulled over for speeding one night.  When officers approached his car, they saw him reach down several times.  They also smelled marijuana when defendant lowered his window.  They asked the defendant to step out of his vehicle and ran his driver's license, which revealed that he was a convicted felon on probation.  While one officer checked defendant's license, another searched his car and found a firearm under the driver's side floor mat.  

Defendant moved to suppress the firearm, which the district court denied.  He then proceeded to a stipulated bench trial, and was found guilty.  At sentencing, the district court determined that his three prior Virginia drug convictions were serious drug offenses under the ACCA, and sentenced him to 15 years imprisonment.  

As to the prior Virginia drug convictions, defendant argued that the least culpable conduct included "giving or possessing with intent to give a controlled substance to another" without intent to profit, and therefore was overbroad.  The Court disagreed, analogizing to similar Alabama statutes analyzed in Hollis v. United States and United States v. Robinson.   

As to defendant's motion to suppress the firearm, the Court found no clear error in the district court's decision to credit the testimonies of the police officers who testified, and found that the officers had probable cause to search defendant's car on account of the marijuana odor.  

The Court also rejected--as clearly foreclosed by binding circuit precedent--defendant's arguments that his Fifth and Sixth Amendment rights were violated when the court determined that his prior predicate offenses occurred on different occasions, and his argument that 18 U.S.C. § 922(g)(1) exceeds Congress's authority under the Commerce Clause.   

Phillips: Vacating Conviction on Double Jeopardy Grounds

In United States v. Phillips, No. 18-11737 (July 13, 2021) (Jill Pryor, Grant, Royal (MD Ga)), the Court affirmed in part and vacated in part defendant's convictions relating to child pornography.

Defendant was charged with, and convicted of: (1) knowingly and intentionally using, persuading, inducing, and enticing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, in violation of 18 U.S.C. §§ 2251(a) and (e); (2) knowingly receiving, and attempting to receive, material containing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1); and (3) knowingly possessing, and attempting to possess, material containing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2).   

On appeal, defendant first challenged the jury instruction given as to count 1.  He argued that the district court constructively amended the indictment because the indictment charged him with "knowingly and intentionally" causing a minor to engage in sexually explicit conduct, while the court's instruction to the jury noted that the government need not prove that the defendant knew the victim was a minor.  The Court found no reversible error because the statute does not require that the defendant know his victim's age; therefore, the district court did not err in disregarding any language in the indictment that suggested otherwise.  

Defendant next argued that he was improperly convicted and sentenced for both a crime and a lesser-included crime based on the same set of facts--receiving and possessing child pornography.  The Court agreed that it was a violation of the Double Jeopardy Clause for defendant to be convicted of both an offense and its lesser-included offense, and vacated defendant's conviction for count 3.  The Court did so on plain error review.         

Leonard: § 922(g) Indictment Errors Subject to Harmless Error Review

In United States v. Leonard, No. 19-14142 (July 8, 2021) (Martin, Grant, Brasher), the Court held that an indictment's failure to set out an element of the offense does not warrant an automatic presumption of prejudice to the defendant.  Any such error is subject to the harmless-error inquiry.  

Defendant was indicted for being a felon in possession of a firearm prior to the Supreme Court's issuance of Rehaif v. United States, 139 S. Ct. 2191 (2019).  Once the Supreme Court granted certiorari review in Rehaif, the government, in an abundance of caution, superseded defendant's indictment to include the knowledge element.  The defendant moved to dismiss the new indictment as legally insufficient, which the district court denied. On appeal, defendant challenged his indictment, the district court's refusal to reopen his suppression hearing, the district court's denial of his motion to hold a hearing to challenge the search warrant affidavit, whether cumulative trial errors warranted reversal, and the propriety of his sentence. 

With regard to the indictment, the Court held that an indictment that references only § 922(g) and not also § 924(a)(2) is sufficient to confer subject matter jurisdiction.  Additionally, the indictment was itself legally sufficient and gave defendant adequate notice of the elements the government needed to prove.  But, even if the indictment could have been better drafted, any error in its wording was harmless, applying the Supreme Court's recent opinion in Greer. 

With regard to the district court's refusal to reopen the suppression hearing, the Court found no abuse of discretion because the "new evidence" defendant referenced did not contradict the testimony the district court already considered at the hearing.  

With regard to challenges to the veracity of search warrant affidavit, the Court held that defendant failed to make a "substantial preliminary showing" that the search warrant author made false statements intentionally or with a reckless disregard for the truth, and that the false statement was necessary to the finding of probable cause.  

With regard to the alleged cumulative trial errors, the Court held such relief unwarranted where, as here, there is only one error or no errors at all. 

Finally, the Court affirmed defendant's ACCA-enhanced sentence.   

Matthews: Affirming Application of Sentencing Enhancement for Offense Involving Semiautomatic Firearm Capable of Accepting Large Capacity Magazine

In United States v. Matthews, No. 20-10554 (July 6, 2021) (Wilson, Rosenbaum, Ed Carnes), the Court affirmed the defendant's 57-month sentence for making false statements to a firearms dealer. 

Defendant objected to the application of enhancements for (1) an offense involving a semiautomatic firearm that is capable of accepting a large capacity magazine, and (2) having a prior conviction for a crime of violence.

The Court first acknowledged that neither it nor its sister circuits had published an opinion addressing how the sentencing enhancement under § 2K2.1(a)(3) applies when the underlying offense is making a false statement to a firearms dealer. At issue here is the commentary's definition of semiautomatic firearm that is capable of accepting a large capacity magazine as "a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm.  Here, the district court reasonably inferred that a magazine capable of accepting more than 15 rounds of ammunition--that comes standard with the rifle defendant tried to purchase--was in close proximity to the rifle defendant tried to purchase.  As such, the district court did not err in applying the enhancement. 

The Court also reaffirmed that a conviction for felony battery under Fla. Stat. § 784.041 is categorically a crime of violence.  Therefore, the district court did not err in determining that defendant's prior conviction for Florida felony battery constitutes a crime of violence.        

Pitts: Affirming § 2255 Denial for Failure to Satisfy Beeman Burden

In Pitts v. United States, No. 18-12096 (July 6, 2021) (Luck, Ed Carnes, Marcus), the Court affirmed the denial of Pitts's  Johnson-based second or successive § 2255 motion.  

Pitts was sentenced as an armed career criminal based upon the following prior convictions: (1) a 1978 California conviction for robbery with a firearm; (2) a 1982 California conviction for robbery and forcible rape; (3) a 1993 Florida conviction for delivery of cocaine; and (4) a 2001 Florida conviction for possession with intent to sell or deliver cocaine.  

On appeal, the Court addressed whether Pitts carried his burden of showing that the district court that sentenced him erred under the Johnson decision in counting his two robbery convictions as ACCA predicate violent felonies.  It found that he had not under Beeman.  A movant can meet his Beeman burden in one of two ways: first, by pointing to evidence in the record showing that the district court relied only on the residual clause in sentencing him--evidence which may include comments made by the parties, by the sentencing judge, or in the PSR; second, by showing that when he was sentenced, binding precedent clearly established that the predicate offense was a violent felony only under the ACCA's residual clause. 

Here, Pitts failed to identify anything in the sentencing transcript, PSR, or the remainder of the record indicating that the court relied on the residual clause, instead of the elements clause, in concluding that this 1978 California robbery conviction was a violent felony.  Additionally, the Court found Pitts's reference to multiple California cases unconvincing.  Pitts's reliance on United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015), is unavailing because it was decided six years after he was sentenced.  Pitts's reliance on United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), was also unavailing, even though it was issued before Pitts was sentenced, because it does not establish that robbery under California law is not a violent felony for purposes of the ACCA.  There, the 9th Circuit held that a conviction under California's robbery statute would necessarily constitute either generic robbery or generic extortion.  Thus, even if the district court might have concluded that the 1978 robbery was a violent felony under the residual clause, it could have been persuaded to find that the robbery was tantamount to extortion and therefore qualified under the enumerated offenses clause of 18 U.S.C. § 924(e)(2)(B).  

At best then, it is unclear from the record whether the sentencing court relied on the residual clause or the elements clause or the enumerated offenses cause, or all three.  As such, Pitts has failed to meet his burden and loses.         

In re Grand Jury Subpoena: Upholding Order Compelling Attorney Grand Jury Testimony Based on Crime-Fraud Exception to Attorney-Client Privilege

In In re Grand Jury Subpoena, No. 21-11596 (June 25, 2021) (Jordan, Newsom, Lagoa), the Court upheld an order granting the government’s motion to compel an attorney’s testimony to a grand jury.

The attorney was the lawyer in charge of the campaign of a political candidate who was under criminal investigation.  While the attorney claimed that his testimony was protected by the attorney-client privilege, the Court agreed with the district court that the communications fell into the crime-fraud exception to the privilege.  First, the Court held that the government made a prima facie showing of federal wire fraud by the candidate stemming from the diversion of, and failure to report, funds solicited by and donated to the campaign.  Second, the Court held that the attorney’s communications with the campaign were sufficiently related to the wire-fraud scheme.  Although courts have articulated different standards of relatedness, the more restrictive standard—requiring the communications to have furthered the criminal purpose—was met here because the lawyer was aware of the personal expenditures and then revised and reviewed the misleading disclosure forms.

Henry: Adjustment for Undischarged State Sentence Under USSG 5B1.3(b) is Advisory, Not Mandatory

In United States v. Henry, No. 18-15251 (June 21, 2021) (William Pryor, Grant, Antoon (MD Fla)), the Court vacated the panel opinion upon a petition for rehearing by the government and affirmed the defendant’s sentence.

Contrary to the panel’s original opinion, the panel now held that USSG 5G1.3 is advisory, not mandatory.  After Booker, all Guidelines are advisory.  There is no distinction between Guidelines that affect the sentencing “range” and those that affect the “kind of sentence” available.  While the district court needed to consider 5G1.3(b) when determining the sentence recommended by the Guidelines, it was then free to exercise its discretion to impose the sentence it deemed appropriate under 3553(a).  And, in any event, because the district court considered 5G1.3 and said it would impose the same sentence regardless, any error was harmless.

Chief Judge Pryor, author of the original panel opinion, dissented.  Elaborating on his original opinion, he maintained that, under circuit precedent, 5B1.3(b) is mandatory, and that precedent was correct because it involves the imposition of the sentence, not the calculation of the guideline range.  He also disagreed that any error here was harmless because 5G1.3(b) involves a back-end adjustment to the sentence.

Nunez: Affirming Title 46 Convictions Over Various Challenges and Clarifying that Identity of Controlled Substance is Not an Element

In United States v. Nunez et al., No. 19-14181 (June 17, 2021) (William Pryor, Grant, Tjoflat), the Court affirmed the defendants’ MDLEA convictions.

First, the Court held that there was jurisdiction because the vessel was one without nationality.  The “vessel without nationality” definitions in the statute were not exclusive, and the vessel here lacked nationality because it carried no documents, flew no flag, had no name or numbers, and nobody on the vessel claimed that it had nationality or registry.  In addition, nobody claimed to be the master or captain, and the smugglers all played equal roles.  The Court rejected the argument that this meant they were all in charge or took turns at being in charge.  The Court also rejected a Second Circuit decision, which concluded that jurisdiction was lacking when three men, none of whom claimed to be the master, were not asked for a claim of nationality or registry.

Second, the Court held that the district court was not required to hold an evidentiary hearing on jurisdiction under either the Confrontation Clause or the statute.  In this case, the smugglers did not identify any facts that they sought to contest or additional facts they sought to introduce.  Nor did the they suffer any prejudice by the district court waiting until the end of the trial to make a final determination about jurisdiction.

Third, sufficient evidence supported the convictions.  The Court clarified that its decision in Narog, which required the government to prove knowledge of the particular controlled substance alleged in the indictment, was contrary to earlier precedents and therefore is not good law.  The identity of the controlled substance is not an element of the offense.

Finally, the Court rejected the argument that the district court deprived the defendants of their right to a complete defense when it prohibited them from cross-examining the government’s witnesses about more than the basic details of their 10-day outdoor confinement on the vessel.  That evidence was cumulative to evidence already admitted, and any error was harmless.

Anderson: Upholding Shrimping Fraud Convictions Against Multiple Challenges

In United States v. Anderson, No. 18-13947 (June 15, 2021) (Wilson, Branch, Julie Carnes), the Court affirmed the defendant’s mail fraud, false statements, and money laundering convictions.

First, the Court held that the district court did not err by asking the defendant whether he knew that he had a right to testify and whether he wished to do so or waive the right.  Although not required, the court’s straightforward and neutral inquiry did not violate his right to testify.  Nor did it render his counsel ineffective by asking what choice the defendant had made.  The colloquy, which did not probe questions of strategy or suggest the court’s own preference, vindicated rather than violated his constitutional rights.

Second, the district court did not abuse its discretion by failing to give a requested instruction on a particular statute that he was not charged with violating.  Failure to give the instruction did not impair the defense, and the defendant was otherwise free to pursue his defenses without impediment.

Third, the Court found no reversible error under Rule 30(b) where the district court amended an erroneous draft jury instruction for mail fraud after the defendant’s closing argument.  The Court found no unfair prejudice, as the instructional issue had nothing to do with the theory of defense or any critical strategic decisions relating to closing argument.  Nor was reversal required by the court’s failure to give a curative instruction to a brief comment by the prosecutor suggesting that defense counsel had been misleading in closing.

Finally, the district court did not plainly err by giving a modified Allen charge similar to the pattern instruction.  The instruction was not impermissibly coercive because the deviation from the pattern, which had been upheld previously, consisted of only minor word changes.

Montenegro: Upholding Enhancement Under 2D1.1(b)(1) for Possession of Firearm

In United States v. Montenegro, No. 19-13542 (June 11, 2021) (Branch, Grant, Tjoflat), the Court upheld an enhancement under USSG 2D1.1(b)(1) for possessing a firearm.

The Court held that the government met its burden by showing that the gun was present at the site of the drug possession charge.  The burden therefore shifted to the defendant to prove that the connection between the gun and drugs was clearly improbable, and the defendant could not meet his heavy burden to do so.  Although he did not have the gun with him during drug transactions, the gun was present in the home with the drugs that he was convicted of possessing with intent to distribute.  Although the government agreed at sentencing that the enhancement did not apply, it was up to the district court to calculate the guidelines, and nothing prohibited the government from reversing position on appeal.

In footnote 3, the Court held that the defendant failed to preserve his objection to the district court’s failure to grant him a two-level safety-valve reduction.  By raising that issue in one sentence in his initial brief, and by failing to devote a discrete section of his argument to it, he failed to sufficiently raise the error on appeal.  And while the defendant did make substantive arguments about it in his reply brief, the Court does not consider arguments raised for the first time in reply.

Cody: No COA Required for Choice of Sentencing Remedy Following Successful 2255 Motion

In United States v. Cody, No. 19-11915 (May 28, 2021) (William Pryor, Luck, and Marks (MD AL)), the Court held that a certificate of appelability is required when appealing from a district court’s decision to simply remove a now-illegal ACCA enhancement without re-sentencing the defendant on other counts.  The Court explained that such a decision about the choice of remedy was part of the 2255 proceeding, not the criminal proceeding.  And because the defendant lacked a COA, the Eleventh Circuit lacked jurisdiction.  In so holding, it appeared to acknowledge that the Fourth Circuit has reached a contrary holding.

Roberson: Upholding Section 666 Bribery Convictions

In United States v. Roberson, No. 18-14654 (Wilson, Branch, Restani (Int’l Trade)), the Court affirmed the defendants’ convictions for bribing an Alabama state representative.

The Court first held that the evidence was sufficient to support the defendant’s bribery convictions under 18 U.S.C. 666.  The Court rejected the defendants’ argument that the “official acts” requirement recognized in McDonnell for the bribery statute in 18 U.S.C. 201 also applied to Section 666.  The Court rejected the defendants’ argument that the official was not “agent of Alabama” but rather an agent of the Alabama legislature.  And it rejected their argument that the “retainer” theory of liability was invalid and implicated their First Amendment rights.

The Court next found no reversible error with regard to the jury instructions, rejecting similar arguments made in the sufficiency context.

Finally, the Court found no abuse of discretion in refusing to sever the defendants for trial.  The defendant argued that joinder with his attorney resulted in the exclusion of certain evidence that prevented him from making an advice-of-counsel defense.  The Court rejected that argument because the evidence was essentially cumulative and had relatively little probative value.

Cook: Vacating Denial of Compassionate Release Motion for Failure to Consider 3553(a) Factors

In United States v. Cook, No. 20-13292 (May 27, 2021) (Jordan, Marcus, Ginsburg (CADC)), the Court vacated the denial of a motion for compassionate release and remanded for further proceedings.

The Court held that, as in the 3583(e) and 3582(c)(2) contexts, the district court must consider the 3553(a) factors under 3582(c)(1)(A)(i).  The Court vacated the denial because the district court’s order and record failed to demonstrate that the court considered the 3553(a) factors.  The motion was based primarily on the pandemic, but the court’s order failed to mention it.  The court’s boilerplate prefatory language, and the fact that the judge originally presided over the criminal case, did not permit an assumption that the court considered the 3553(a) factors.  Because the record did not permit meaningful appellate review, the Court vacated and remanded.

Estepa: Upholding Wire Fraud Convictions Against Sufficiency Challenges

 In United States v. Estepa, No. 19-12272 (May 25, 2021) (Lagoa, Anderson, Marcus), the Court affirmed the defendants’ wire fraud convictions.

The Court rejected the defendants’ two arguments that the evidence was insufficient to support their convictions, which arose from misrepresentations made in bidding on local government construction contracts.  First, the Court found that the evidence was sufficient to show that the defendants engaged in a scheme to defraud by intentionally making material misrepresentations that it intended to comply with certain legal requirements and not to use subcontractors.  The Court rejected the defendants’ argument that there was no scheme to defraud because the government did not suffer a financial loss.  Second, the Court found that the evidence was sufficient to show that the defendants knowingly and voluntarily agreed to commit the scheme to defraud and pursued overt acts in furtherance of that agreement.  The Court rejected the defendants’ argument that their misstatements arose from a reasonable and good-faith interpretation of a complex regulatory regime.

Taylor: Upholding Electronic Search Condition of Supervised Release for Non-Sex Offender

In United States v. Taylor, No. 20-10742 (May 21, 2021) (Jill Pryor, Luck, Tjoflat) (per curiam), the Court upheld the defendant’s terms of supervised release and his sentence for his felon-in-possession offense.

The defendant argued that the district court erred by imposing an electronic search condition of supervised release to deter him from future offenses.  Although typically reserved for sex offenders, the Court held that such a search condition may also be imposed on other offenders, such as those who frequently recidivate or violate their supervised release in a way that poses a danger to others.  In this case, there was no abuse of discretion because, although the defendant was not a sex offender and the condition did not directly relate to his firearm offense, it was reasonably related to his history as a recidivist.  The condition was not overbroad because it allowed access only at a reasonable time when there was reasonable suspicion.  And the specific areas to be searched were not vague because those areas were enumerated in the condition.

The Court also held that the 30-month sentence, a 3-month upward variance, was not substantively unreasonable.

Potts: No Abuse of Discretion in Declining to Reduce SR Term Under Section 404 of the First Step Act

In United States v. Potts, No. 19-12061 (May 19, 2021) (Lagoa, Hull, Marcus), the Court affirmed the denial of a motion for a sentence reduction under Section 404.

The Court held that the district court did not abuse its discretion in declining to reduce one of the defendant’s terms of supervised release.  The district court referred to the 3553(a) factors, the facts and circumstances of the case, the government’s response, probation’s memorandum, and the defendant had an extensive criminal history.  The Court rejected the defendant’s argument that the record did not permit meaningful appellate, distinguishing its recent decisions in Stevens and Russell.

Castaneda: Upholding Enticement Convictions and 35-year Sentence

In United States v. Castaneda, No. 19-12623 (May 19, 2021) (William Pryor, Luck, Ed Carnes), the Court affirmed the defendant’s enticement convictions and sentence.

First, the Court found no error in refusing to dismiss the indictment based on outrageous government misconduct by exposing him to child pornography during its sting operation.  The Court emphasized he (not the government) exposed himself to child pornography, and no court has ever found such government misconduct to rise to the level of dismissal.  “The hunt for Sasquatch will have continue in another case.”

Second, the Court upheld the denial of a motion to suppress child pornography found on the defendant’s computers.  Two friends living in his apartment discovered the pornography and voluntarily turned the computers over to the FBI, which then obtained a search warrant.   Because those private actors acted independently of law enforcement, there was no Fourth Amendment violation, regardless of the defendant’s consent.

Third, the district court did not abuse its discretion in instructing the jury that the defendant did not have a Fifth Amendment privilege to refuse to answer questions on cross examination, and in instructing the jury that his refusal to answer questions could be used to assess his credibility.

Fourth, the Court found no abuse of discretion in excluding the defendant’s expert witness, Dr. Herriot, who would testify about generalized background information that people sometimes mix fact with fiction on the internet.  The Court had recently upheld the exclusion of that expert’s testimony in another case.

Finally, the Court found that the defendant’s 35-year guideline sentence, five years above the 30-year mandatory minimum and well below the maximum of life, was not substantively unreasonable.

Stevens: Courts Need Not Consider 3553(a) Factors in Section 404 Proceeding

In United States v. Stevens, No. 19-12858 (May 19, 2021) (Lagoa, Anderson, Marcus), the Court vacated the denial of a motion for a sentence reduction under Section 404 of the First Step Act.

The parties agreed, and the Court accepted, that the defendant had a “covered offense” under Section 404, and so was eligible for a reduction to his term of supervised release.  The Court then held that, although it may be best practice for district courts may consider the 3553(a) factors when exercising their discretion, Section 404 does not require that they do so.  The Court purported to follow four other circuits for that point, though it did not mention that other circuits had reached a contrary conclusion.  The Court ultimately vacated and remanded because the record did not permit meaningful appellate review of the district court’s alternative discretionary denial with respect to the term of supervised release.

Jackson: Upholding Enhancement Under 2K2.1(b)(6)(B) Where Sale of Drugs and Guns Were Negotiated as a Package Deal

In United States v. Jackson, No. 19-14883 (May 18, 2021) (William Pryor, Luck, Ed Carnes), the Court affirmed the defendant’s sentence.

The sentence was enhanced under USSG 2K2.1(b)(6)(B) for using or possessing a gun “in connection with” another felony, which occurs where the gun facilitated, or had the potential to facilitate, the other felony offense.  The district court did not clearly err by finding that connection here, where the defendant negotiated guns and drugs to be sold at the same time, even though the defendant ultimately sold the drugs first and the gun later.  Coordinating the sale of both at the same time shored up the drug sale and allowed the seller to conduct two sales with a minimal increase in the risk of detection.

Garcon: Disqualifying Safety-Valve Criteria in 3553(f)(1)(A)-(C) Are Disjunctive, Not Conjunctive

In United States v. Garcon, No. 19-14650 (May 18, 2021) (Jordan, Jill Pryor, Branch), the Court, after a government appeal, vacated the defendant’s sentence that had been imposed with the benefit of the safety valve in 3553(f).

The Court held that the criteria in 3553(f)(1)(A)-(C) are disjunctive, so that if any of those subsections apply, the defendant is not eligible for safety valve relief.  The Court rejected the defendant’s argument that a defendant is ineligible only if (A) through (C) all exist.  Because the defendant had a three-point offense under (B), he was ineligible for safety valve relief, even though he did not have more than 4 points under (A) or a 2-point violent offense under (C).

Judge Branch concurred, adding that the result was also supported by the rarely-used semantic canon referred to as the conjunctive negative proof.

 

Dominguez: 2G2.2(b)(5) Enhancement for Pattern of Sexual Abuse Does Not Require Physical Contact

In United States v. Dominguez, No. 19-11378 (May 13, 2021) (Jordan, Jill Pryor, Branch), the Court affirmed in part and reversed in part the defendant’s sentence.

To determine whether an enhancement was appropriate under USSGS 2G2.2(b)(5) for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor, the Court sided with the government over the defendant and the Fourth Circuit over the Seventh Circuit in holding that “sexual abuse or exploitation,” which effectively incorporates the phrase “sexual activity” in 18 USC 2422(b), did not require actual or attempted physical contact between two persons.  Rather, the phrase means action or pursuit relating to intercourse or to the desire for sex or carnal pleasure.  In this case, the defendant sent a minor a photo of his penis and asked her for naked pictures, and that constituted “sexual activity.”  However, the Court remanded for the district court to determine, in the first instance, whether the defendant’s conduct could have been charged as a criminal offense, a separate requirement for the enhancement.

Edward: Section 404 Is Self-Executing and Permits Courts to Add Supervised Release if They Reduce the Overall Sentence

In United States v. Edward, No. 19-13366 (May 13, 2021) (Jordan, Newsom, Tjoflat), the Court affirmed the ruling on the defendant’s motion for reduced sentence under Section 404 of the First Step Act.

First, the Court held that Section 404 is self-executing.  Therefore, a motion under that Section need not be brought under 3582(c)(1)(B), which is limited to reductions to the term of imprisonment (and not supervised release).  Second, and as a result, a district court has the authority under Section 404 to add a new term of supervised released, provided that it reduces the defendant’s overall sentence.  Here, the court appropriately exercised that authority by reducing a life sentence down to 260 months, and then adding an 8-year term of supervised release.

Bryant: USSG 1B1.13 Remains an "Applicable Policy Statement" Limiting Compassionate Release

In United States v. Bryant, No. 19-14267 (May 7, 2021) (Brasher, Luck, Martin), the Court affirmed the denial of compassionate release.

Breaking with the seven other circuits to address the issue, the Court held that USSG 1B1.13 remains an “applicable policy statement,” and thus constrains courts considering a defendant-filed 3582(c)(1)(A) motions.  The Court also held that Application Note 1(D)—a catchall provision for defining “extraordinary and compelling” circumstances—applies only to BOP-filed motions, and so defendant-filed motions must therefore satisfy one of the other criteria in Application Note 1(A)-(C).

Judge Martin dissented in a 20-page opinion, emphasizing that the majority limits inmates’ ability to seek compassionate release, prevents courts from conducting independent and individualized consideration, and revives the problem that the First Step Act was meant to resolve by leaving the determination in BOP’s control.

Brown: En Banc Court Vacates Conviction For Dismissing Juror Guided by the Holy Spirit

In United States v. Brown, No. 17-15470 (May 6, 2017) (William Pryor, Newsom, Branch, Grant, Luck, Lagoa, and Brasher), the en banc Court vacated the defendant’s conviction.

The en banc majority held that the district court abused its discretion by dismissing a juror who said that the Holy Spirit told him that the defendant was not guilty, but then assured the court that he was following the instructions and basing his decision on the evidence at trial.  Because there was a “substantial possibility” that he was basing his decision on the evidence and the law, removing the juror violated the defendant’s Sixth Amendment right to a unanimous jury.

Judge Newsom, joined by Judge Grant, concurred, emphasizing that the juror’s Holy Spirit statement had to viewed in the context of the record and that the case wasn’t really about religion.

Judge Brasher, joined by Judge Branch, concurred, opining that there was no reason to inquire into the juror’s thoughts at all because his comment occurred at the outset of deliberations and the juror had committed no misconduct.

Judge Wilson, joined by Judges Martin, Jordan, and Rosenbaum (Jill Pryor was recused), dissented, emphasizing that the appellate court should not second guess the district court’s factual findings about the juror, which should be reviewed deferentially.

Judge Rosenbaum, joined by Judges Wilson and Martin, dissented, emphasizing that the majority’s reasoning would equally prevent, and thus deter, a judge from dismissing a juror who said that the Holy Spirit told him to convict.

Foster: Affirming Denial of Davis-Based, Multiple Predicate § 2255 Motion

In Foster v. United States, No. 19-14771 (May 4, 2021) (Jordan, Marcus, Ginsburg), the Court affirmed the district court's denial of Foster's Davis-based, multiple-predicate § 2255 motion.

This case involves a reverse sting operation wherein Foster was charged with conspiring with others to commit armed robbery of a house he believed held a Colombian cartel's drug stash.  Foster was charged with: (1) conspiracy to commit Hobbs Act robbery; (2) conspiracy to possess with intent to distribute at least 5 kg of cocaine; (3) attempt to possess with intent to distribute at least 5 kg or more of cocaine; (4) conspiracy to use and carry a firearm during and in relation to the crimes alleged in Counts 1, 2, and 3; (5) using and carrying a firearm during and in relation to the crime alleged in Counts 1, 2, and 3; and (6) possessing a firearm as a convicted felon.  At trial, the jury was instructed that it could find Foster guilty of Counts 4 and 5 if it found he carried or possessed a firearm to commit the crimes charged in Count 1 or Counts 2 or 3.  As to Count 5, the court instructed the jury that it had to unanimously agree upon the way in which Foster committed the violation.  No such unanimity instruction was given with respect to Count 4.  The jury returned a general verdict finding Foster guilty on all six counts.  After the Supreme Court's opinion in Davis, Foster was granted leave to file a second or successive § 2255 motion, which the district court denied.         

On appeal, the Court first addressed the government's procedural default argument, raised for the first time on appeal.  The Court found, "[u]nder the peculiar circumstances of this case," that the government waived the affirmative defense of procedural default.  

Moving on to the merits of Foster's claim, the Court held that he could not prevail because the Hobbs Act conspiracy was inextricably intertwined with the conspiracy and attempt to possess with intent to distribute cocaine.  Any inclusion of an invalid predicate offense in the indictment and jury instructions was harmless.  In so holding, the Court heavily relied on its previous opinion in Granda v. United States, 990 F.3d 1272 (11th Cir. 2021).      

  

Jackson: Denying Rehearing En Banc

In United States v. Jackson, No. 19-11955 (May 3, 2021) (denying relief under the First Step Act because the quantity of drugs involved in defendant's 1999 offense would have still triggered a mandatory minimum under the Fair Sentencing Act of 2010), the Eleventh Circuit denied rehearing en banc.  

Chief Judge William Pryor, joined by Judge Grant, wrote separately in support of the Court's decision to deny rehearing en banc.  More specifically, he wrote to respond to the dissent's arguments that the panel misread section 404(b) of the First Step Act.  Chief Judge Pryor clarified that section 404(b) contains two implicit limits on the availability of relief: (1) the district court may not grant a reduction if the trafficker already received the lowest statutory penalty that would be available to him under the Fair Sentencing Act; and (2) the district court is bound by a previous finding of drug quantity that was used to determine the trafficker's statutory penalty at the time of sentencing.  He believes the dissent reads these limits out of section 404(b), and in so doing, commits three errors of statutory interpretation--(1) it selectively fails to consider what the text of the First Step Act fairly implies;(2) it neglects to read section 404 in the light of the statutory scheme; and (3) it focuses on the general purpose of the First Step Act to the exclusion of its specific text.

Judge Martin, joined by Judge Rosenbaum, dissented from the denial of rehearing en banc.  They argue that by attributing a drug amount to the defendant that was neither found by a jury nor charged in his indictment, the panel created a limit on First Step Act relief found nowhere in the text of the statute.  As a result, the reach of the First Step Act has been curtailed in the Eleventh Circuit, creating a troubling disparity between defendants sentenced before and after Apprendi v. New Jersey, 530 U.S. 466 (2000).             

Gonzalez-Zea: Affirming Denial of Suppression Motion

In United States v. Gonzalez-Zea, No. 19-11131 (Apr. 30, 2021) (Newsom, Branch, Ray), the Court affirmed the denial of defendant's motion to suppress.  

Immigration and Customs Enforcement ("ICE") agents in the process of staking out a home in search of an ICE fugitive, whose social security number had been linked to a utility account at the address in question, stopped a car leaving the residence in the early morning hours.  The defendant was driving that car.  When the ICE agents asked him for identification, he produced an ID card issued in Mexico.  The agents asked if he had any other identification on him, and he said no, admitting that he was unlawfully present in the United States.  At that point, the agents were pretty sure the defendant was not the fugitive they were searching for.  The agents explained that they were looking for an ICE fugitive, and defendant responded that he lived alone.  He did, however, give the agents permission to search his house.  During that search, the agents discovered firearms "in plain view."  They then arrested the defendant for possession of a firearm and ammunition by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2).  Defendant moved to suppress the evidence, and the district court denied his motion.

On appeal. defendant argued that the district court should have granted his motion to suppress because: (1) ICE agents did not have the requisite individualized reasonable suspicion to stop him; (2) the ICE agents unlawfully prolonged the stop; and (3) his consent to search his home was involuntary.  The Court rejected the defendant's arguments on appeal.  

As to whether the agents had reasonable suspicion to stop the defendant, the Court held that they did under the totality of the circumstances--the social security number associated with the fugitive was connected to the house's utility service, and because it was still dark outside when the defendant left his home, the agents could not be sure he was not the fugitive they were looking for.  The agents also believed that if he was not the fugitive, he may have had information about the fugitive's whereabouts.  The Court also clarified that the fact that the defendant was in his car at the time he was stopped did not transform the stop into a traffic stop.  This case was not one where a traffic stop based on a suspicion of mere potential general criminality formed the basis of the Fourth Amendment violation.  

Next, the Court held that the agents did not unlawfully prolong the stop.  The only questions the agents asked the defendant during the stop related to verifying his identity, which was the purpose of the stop.  Agents did not ask any other questions relating to the investigation of another crime. 

Finally, as to whether the defendant's consent to search his home was involuntary, the Court held that it was not.  The seizure itself was lawful, and the agents did not coerce the defendant into consenting.  The interaction between the defendant and the agents was "friendly" and "cordial"--when asked if the agents could search his house, he said yes, drove home, unlocked the house for them, and walked them through the house.  The agents' holstered firearms, the activated red and blue police lights on their cars, their retention of the defendant's identification card, their failure to expressly advise him of his right to refuse consent, and their failure to inform him that he was free to go, did not change the analysis.  

Pacheco-Romero: Funds Not Earned by Disqualified Counsel Should Be Paid to CJA Fund

In United States v. Pacheco-Romero, 19-14446 (Apr. 28, 2021) (William Pryor, Jill Pryor, Self), the Court affirmed the district court's order that funds not earned by disqualified counsel be paid to the CJA fund.    

This appeal involves the question of what happens to money paid to a law firm when that law firm is subsequently disqualified from representing any of the parties in the case based upon a conflict of interest.  Here, six defendants retained the same law firm to represent them in a case where they were charged with conspiracy to possess with intent to distribute methamphetamine.  The law firm had collected a total of $21,000 from the defendants.  After the firm was disqualified, questions arose about whether the law firm had earned the entire fee it had collected, and, if not, whether the portion of the fee that did not belong to the law firm should be refunded to the defendants or used to reimburse the fees and expenses of the defendants' appointed CJA counsel.  Because the law firm refused to disclose what portion of the fee, if any, the law firm had not earned, the district court ordered the law firm to pay $15,000 into the court's registry.  The court then determined that $8,000 of the funds in the registry had been earned.  The district court directed that the remaining $7,000 be paid to the CJA fund.  The law firm appealed the orders directing them to pay $15,000 into the court's registry, and directing that $7,000 of those funds should be paid to the CJA fund.  The United States did not participate in the appeal because it had not been involved in any of the proceedings below.   

This Court affirmed in part and dismissed in part.  First, the Court reviewed its appellate jurisdiction over each of the grounds raised on appeal.  The Court noted that while 28 U.S.C. § 1291 grants appellate courts jurisdiction to review decisions made by district courts in a judicial capacity, orders under 18 U.S.C. § 3006A(f)--directing a person to pay money into the court's registry or directing a court clerk to pay money from the registry to cover the cost of appointed counsel--are administrative in nature, and therefore not reviewable.  The one exception to the rule, however, is that the Court may review district court orders under § 3006A(f) to ensure that the district court complied with the procedural requirements of § 3006A(f).   

Three of the four grounds raised on appeal concerned the exception, and were thus reviewable--(1) the district court lacked the authority to raise sua sponte the question of whether a portion of the fees paid to the law firm were available to the defendants for purposes of the CJA; (2) the district court failed to perform an appropriate inquiry into whether the funds were available to the law firm before compelling payment of funds into the court's registry; and (3) the district court improperly required the law firm to pay funds into the court's registry before any appointed counsel had submitted a payment voucher.  The Court held that it lacked jurisdiction to review the fourth ground--that the district court erred in finding that a portion of the funds were available to the defendants--and dismissed that ground.  

As to the three reviewable grounds, the Court discerned no error, and affirmed the district court.              

Riley: Sentence 52-months Above High-End of Guidelines Not Unreasonable

In United States v. Riley, No. 19-14013 (Apr. 28, 2021) (Grant, Tjoflat, Ed Carnes), the Court affirmed a 70-month sentence imposed for a violation of 18 U.S.C. § 922(g)(1), where the guidelines range was 12–18 months.    

At sentencing, defendant stipulated that he had possessed a stolen firearm as a felon in pending charges in Mississippi. He also had pending state charges concerning an alleged sale of methamphetamine, which he contested.  He requested a sentence within the guidelines range, which the government joined.  The district court, however, was "greatly concerned" with the defendant's criminal history, and imposed a sentence of 70 months' imprisonment, which was 52 months above the top-end of the guidelines range.  The district court found an upward variance to be appropriate after considering the defendant's "nature and circumstances" and his "history and characteristics."  The district court also specified that the sentence would run consecutively to any other state sentences.  It rejected defendant's request that the sentence begin running that day, while he was already in state custody, because the basis for the sentence as "totally different conduct."  Defendant objected to the approximately 300 percent upward variance. 

On appeal, defendant argued that the district court abused its discretion by imposing too much of an upward variance.  He argued that the district court erroneously focused almost exclusively on his criminal history.  

This Court disagreed, and found the defendant's sentence to be reasonable.  It reaffirmed the broad discretion afforded district courts at sentencing, and noted that certain characteristics of criminal history are especially significant.  The Court also noted that "[v]iolent offenders are often good candidates for upward variances," citing to research from the U.S. Sentencing Commission.  The Court noted the "stack of other convictions" the defendant had "racked up" before the instant conviction.  

Wild: Reaffirming En Banc That Victims' Rights Don't Attach Pre-Charge Under The CVRA

In In re: Wild, Case No. 19-13843 (Apr. 15, 2021) (en banc), the Court once again 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 ("CVRA") 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 expressed its "profoundest sympathy" for the victims, but felt compelled to hold that the CVRA does not authorize a victim to seek judicial enforcement of her CVRA rights in a freestanding civil action. 

Chief Judge William Pryor, joined by Judges Newsom, Lagoa, and Tjoflat, filed a concurring opinion, to respond to three "fundamental errors" in the dissenting opinion.  First, that the Court is not in the business of issuing advisory opinions.  Second, that statutes must be read as a whole; not as individual subsections in isolation.  And, third, that statutes are interpreted with a presumption against implied rights of action.  

Judge Newsom filed a separate concurring opinion, underscoring how "sick" he felt at the result, but that it was the result the law required. 

Judge Tjoflat, joined by Chief Judge William Pryor and Judges Wilson, Newsom, and Lagoa, filed a separate concurring opinion.  He wrote separately to elaborate on the "untoward effects a pre-charge CVRA model would have on the fairness of our courts and on the separation of powers."  Such a model would "impermissibly drag federal courts into the business of prosecution."  

Judge Branch, joined by Judges Martin, Jill Pryor, and Hull, dissented.  They argued that: (1) the plain text of the CVRA grants crime victims two "pre-charge" rights--the "reasonable right to confer with the attorney for the Government" and the "right to be treated with fairness"; (2) the CVRA provides crime victims with the statutory private remedy of judicial enforcement of those rights "if no prosecution is underway" by filing a motion for relief "in the district court in which the crime occurred."   

Judge Hull filed a separate dissent.  She joined Judge Branch's dissent in full, but wrote separately to discuss: (1) the majority skipped over the first en banc issue; (2) as to that first issue, under the plain language of the CVRA, victims have reasonable rights to confer with prosecutors and those rights attach pre-charge; (3) how the majority misapplied the Sandoval case;(4) the amicus brief submitted by three U.S. Senators in support of the proposition that the CVRA's plain text does not condition a victim's rights and remedy upon a preexisting indictment; and (5) the far-reaching consequences of the Majority's holding.  

    

Osorto: U.S.S.G. §§ 2L1.2(b)(2) and (b)(3) Do Not Violate the Equal Protection Clause

In United States v. Osorto, No. 19-11408 (Apr. 20, 2021) (Martin, Rosenbaum, Tallman), the Court affirmed defendant's sentence for illegal reentry following a prior conviction for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2).   

At issue in this appeal were U.S.S.G. §§ 2L1.2(b)(2) and (b)(3).  Section 2L1.2(b) imposes separate enhancements for convictions a defendant incurred both before he was ordered deported or removed for the first time (2L1.2(b)(2)) and after he was ordered deported or removed for the first time (2L1.2(b)(3)).  Defendant challenged both as violations of his equal-protection rights.  He reasoned that the guidelines, which apply only to illegal-reentry offenses, discriminate against noncitizens by counting their prior convictions twice--once in the offense level and a second time in the criminal history calculation.  Meanwhile, citizens cannot illegally reenter the United States, and generally, no guidelines for other offenses count prior convictions in both the offense-level and criminal-history calculations.  Defendant also challenged the guidelines as violating Congress' directive that sentences be neutral as to national origin.  Finally, he challenged the substantive reasonableness of his sentence.    

The Court disagreed with defendant's equal protection challenge.  In so doing, it conducted both a due-process inquiry and an equal-protection analysis.  First, it found defendant's challenge to § 2L1.2(b)(2) to be foreclosed by binding precedent in United States v. Adeleke, 968 F.2d 1159 (11th Cir. 1992), which held that the pre-2016 version of § 2L1.2(b)(2) echoed § 1326(b)'s enhanced penalties for illegally entering the United States after being deported following a qualifying conviction, and did not violate noncitizens' equal-protection rights.  Second, the Court reasoned that §§ 2L1.2(b)(2) and (b)(3) does not apply to all noncitizens, but only to those noncitizens who both have illegally reentered the United States and have been convicted of other crimes, which is important because doing so comports with Congress' determination that illegally entering the United States after being deported following conviction on another crime is a more serious offense than simply illegally reentering the United States, and that conduct should be deterred.  As such, the challenged guidelines reflect the national interests that Congress permissibly has endorsed through its enactment and amendment of § 1326(b).  Additionally, Congress entrusted the Sentencing Commission with direct responsibility for fostering and protecting the interests of, among other things, sentencing policy that promotes deterrence and punishes culpability and risk of recidivism--the interests the Sentencing Commission cited in issuing §§ 2L1.2(b)(2) and (b)(3).  Finally, the Court found §§ 2L1.2(b)(2) and (b)(3) to be rationally related to the Commission's stated interests in issuing them.           

The Court also disagreed with defendant's contention that by treating noncitizens differently from citizens, § 2L1.2 violated Congress' directive that sentencing be neutral as to national origin per 28 U.S.C. § 994(d).  The Court joined other circuits in recognizing that alienage--not being a citizen of the United States--differs from national origin, i.e. the particular country in which one was born.

Finally, the Court found defendant's 37-month sentence to be substantively reasonable.  The Court rejected defendant's double-counting arguments.  

Judge Martin concurred in part and dissented in part.  She agreed that the Court was bound by Adeleke to reject defendant's equal-protection challenge to § 2L1.2(b)(2).  But, she did not believe that § 2L1.2(b)(3) passed constitutional muster.   

Russell: Vacating and Remanding Denial of Motion for Sentence Reduction Under First Step Act Where District Court Construed Letter Requesting Counsel as Motion Seeking a Sentence Reduction

In United States v. Russell, No. 19-12717 (Apr. 15, 2021) (Jordan, Jill Pryor, Branch), the Court vacated the district court's denial of a motion for a sentence reduction under the First Step Act, and remanded for further proceedings.  

The defendant pleaded guilty to possessing with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A).  The factual basis of the plea, to which the defendant agreed, noted that law enforcement seized a total of 441.2 grams of crack cocaine from the defendant.  

After passage of the First Step Act, defendant sent the district court a one-page letter, asking the court to appoint counsel to assist him in filing a motion for a sentence reduction under the First Step Act.  The district court construed that letter as a motion requesting a sentence reduction under the First Step Act and directed the government to file a response.  The district court, in a two-paragraph order, then denied the defendant a sentence reduction. The court found him ineligible for relief because his offense involved 441.2 grams of crack cocaine. The district court also noted that even if the defendant were eligible for a sentence reduction, the court would not exercise its discretion to grant such a reduction. The defendant filed a pro se motion to reconsider, noting his eligibility for relief as well as his rehabilitation.  The district court denied that motion.  The Office of the Federal Public Defender then filed a motion for appointment of counsel to represent the defendant on appeal, which the court granted.  

The Court, on appeal, considered whether the district court abused its discretion when, after construing the defendant's letter requesting counsel as a motion for a sentence reduction, it refused to grant him a sentence reduction and then denied his motion for reconsideration. The Court answered in the affirmative.  The Court, applying Jones, held that a vacatur and remand was warranted because the defendant was eligible for a sentence reduction, and it was unclear whether the district court understood that it had the authority to reduce his sentence.  The Court found that it could not rely on the district court's statement that it would not exercise its discretion to reduce the defendant's sentence even if he was eligible for relief because the court did not provide enough of an explanation to permit meaningful appellate review.   

The Court also noted, in a footnote, its "serious concerns" about the district court's decision to recharacterize the defendant's letter as a motion for a sentence reduction.  But, the Court noted that it need not decide whether the district court's orders should be vacated because the district court purported to rule on a motion for a sentence reduction without giving him an opportunity to be heard, as the concurring judge proposed.  Instead, the Court maintained that a vacatur and remand were appropriate because the district court's orders were inadequate to allow for meaningful appellate review.  

Concurring in the judgment, Judge Branch noted that she would have vacated and remanded on different grounds.  She would not have reached the eligibility determination under Jones because she believes the district court erred as a matter of law in recharacterizing the defendant's letter without any notification or warning to the defendant.  Instead, she would have remanded for the district court to consider the defendant's letter requesting counsel.              

Elysee: Affirming 922(g) Conviction and Sentence After Disallowing Testimony Regarding Another Person's Confession to the Charged Crime

In United States v. Elysee, No. 18-14214 (Apr. 8, 2021) (Newsom, Tjoflat, Ginsburg), the Court affirmed the defendant's conviction and sentence for being a felon in possession of a firearm. 

This case involved police pursuit of a Kia Optima, thought to contain a man in the passenger seat--dressed in yellow sneakers and a blue and yellow shirt and pant--who had been observed by officers jumping out of the car, pointing a gun at a Ford Mustang, and then speeding away.  Police pursued the Optima, and it eventually hit a light pole.  The passenger-side door opened and a man got out holding a black firearm, thought to be wearing a yellow and blue top and yellow shoes.  The man dropped the firearm and ran away.  He was eventually found curled up on the floorboard of another parked car.  He was arrested.  That man was the defendant.  Officers discovered a firearm near the right front tire of the Optima.  One week later, Darius Deen, the other occupant of the Optima, went to the police station and told Detective Raul Cabrera that he, and not the defendant, was the Optima's passenger and that the firearm found at the scene was his.  Defendant was charged with being a felon-in-possession, proceeded to trial, and was found guilty.          

On appeal, defendant raised four arguments: (1) the district court abused its discretion in precluding him from questioning Detective Cabrera about the substance of Deen's confession to show its effect on the listener; (2) the district court abused its discretion by admitting into evidence the document establishing defendant's prior conviction for armed robbery without redacting the document's references to "armed robbery" and "deadly weapon"; (3) the indictment was insufficient to charge a 18 U.S.C. § 922(g) offense after Rehaif, which was decided after the defendant's conviction; and (4) the district court erred in finding that a prior conviction for Florida armed robbery qualified as a "violent felony" under the ACCA. 

With regard to the first issue, defendant argued that the district court erred in invoking the hearsay rule to preclude him from questioning Detective Cabrera about the substance of Deen's confession to show its effect on the listener--the "effect" being that neither Cabrera nor any other office involved in the investigation did any additional digging to determine whether Deen's confession was truthful.  Defendant argued that this showed that the police failed to act as reasonably diligent officers under the circumstances because their minds were made up that the defendant was the culprit.  The Court, after a "painstaking examination of the trial transcript," including the transcript of a jail call wherein the defendant allegedly admitted to cooking up a scheme to have someone else confess to the crime, rejected defendant's arguments. While the Court agreed that Deen's statements would not have been hearsay if offered merely to demonstrate their "effect on the listener," his confession was still inadmissible because the "affirmative defense" it intended to prove--that Cabrera's conduct in response to the confession fell below the reasonable officer standard of performance--was irrelevant, and the confession's probative value was outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, and wasting time under FRE 403.  The Court refused to hold that a defendant in a criminal case may use out-of-court statements to mount an attack on the quality of the investigation that led to his indictment.  The Court similarly refused to acknowledge the existence of an affirmative defense based upon the failure of police to conduct an investigation as reasonably diligent officers.  

With regard to the indictment issue, the Court reviewed for plain error and found that defendant failed to show a reasonable likelihood that, but-for the error in his indictment, he would not have been found guilty at trial.  

With regard to allowing the jury to see the unredacted document relaying defendant's prior convictions, the Court found no clear abuse of discretion.  

Finally, the Court rejected defendant's arguments regarding Florida armed robbery not being a "violent felony" under the ACCA as precluded by the Supreme Court's decision in Stokeling.    

         

  

Parker: Affirming Denial of Davis-Based § 2255 Multiple-Predicate Motion

In Parker v. United States, No. 19-14943 (Apr. 6, 2021) (Lagoa, Hull, Marcus), the Court affirmed the denial of a § 2255 motion challenging § 924(o) and § 924(c) convictions predicated upon multiple crimes.  

This case involved an ATF reverse-sting operation with the goal of robbing a home believed to be the cocaine stash house of a Colombian cartel.  Movant was charged with the following: (1) conspiracy to commit Hobbs Act robbery; (2) conspiracy to possess with intent to distribute at least 5 kg or more of cocaine; (3) attempt to possess with intent to distribute at least 5 kg or more of cocaine; (4) conspiracy to use and carry a firearm during and in relation to a crime of violence and a drug trafficking offense; (5) using and carrying a firearm during and in relation to a crime of violence and a drug trafficking offense; (6) possessing a firearm as a convicted felon; (7) possessing a firearm as an unlawful alien; and (8) unlawfully entering the United States after having previously been removed.  He proceeded to trial and was found guilty on all counts. 

The Court affirmed the district court's denial of movant's motion because he failed to overcome procedural default, and because even if he could, he suffered no harm from the inclusion of an invalid predicate offense in his indictment and jury instructions.   

As to procedural default, movant advanced only an actual innocence argument, which the Court held failed because, like the movant in Granda, it was undeniable that movant's drug trafficking predicates were inextricably intertwined with the invalid Hobbs Act conspiracy predicate.  Therefore, it was "inconceivable" that the jury could have found that the movant conspired to, and did, use and carry a firearm in furtherance of his conspiracy to rob the house without also finding at the same time that he did so in furtherance of a conspiracy and attempt to obtain the cocaine in the same house.

The Court further noted that though movant's jury instructions suffered a defect not present in Granda--as to the § 924(o) charge, the court failed to instruct the jury that it had to unanimously decide which predicate or predicates supported the conviction--this did not change the outcome.  The predicate offenses were inextricably intertwined so that if the jurors found one applicable, they had to reach the same conclusion with respect to the others.   

The Court once again rejected movant's reliance upon the categorical approach, as well as on Alleyne.  Though the Court in Granda reached its determination regarding Alleyne in the context of a harmless error analysis, the question was not meaningfully different when addressed in an actual innocence context.

The Court also rejected movant's reliance upon In re Gomez, and noted that even though the movant failed to argue cause and prejudice to excuse any procedural default, its prior precedent in Granda prevented such a showing.        

Finally, the Court held that movant could not prevail on the merits of his claim because the jury could not have found that movant's gun use or gun conspiracy was connected to his conspiracy to rob the stash house without also finding that they were connected to his conspiracy and attempt to possess with intent to distribute the cocaine he planned to rob from the same stash house.  Any error was harmless.  In so holding, the Court once again relied extensively on its prior precedent in Granda.  The Court disagreed with movant's suggestion that Granda must not be followed because it conflicted with the Court's earlier decision in Parker.            

      

Pendergrass: Affirming Robbery Convictions with Similar Modus Operandi

In United States v. Pendergrass, No. 19-13681 (Mar. 24, 2021) (Rosenbaum, Luck, Anderson), the Court affirmed the defendant's convictions for Hobbs Act robbery and for carrying a firearm in furtherance of those robberies.

This case stems from a string of five robberies, all of which involved certain commonalities: a black-and-silver pistol held by a left-handed man; that same man dressed in a red hooded shirt under a long-sleeved black shirt with a distinctive white pattern on it; a single strap cross-body backpack; a phone number ending in 1011 that pinged off of cell towers that covered the areas of the robberies; bullets recovered from the scenes of the robberies that had cycled through the same firearm.

Prior to trial, defendant moved to suppress evidence from a phone recovered from his car searched for "handguns, long guns, drugs, bullets, blood and/or DNA" in an unrelated incident.  On the phone, officers found pictures and videos incriminating the defendant in the robberies.  The district court granted the motion to suppress the phone and its contents. The district court, however, denied defendant's motion to exclude Google geo-location data showing his whereabouts during the robberies.  The district court also denied defendant's motion to continue the trial on account of his newly appointed attorney, as well as his motion to dismiss a juror for cause because she was a probation officer.

Defendant raised six challenges to his convictions.  First, he argued that he was prejudiced by the district court's denial of his motion to continue trial.  The Court held that the district court did not abuse its discretion in denying defendant a continuance because defendant had two years to prepare for his trial, did not point to any evidence that would have been presented had the continuance been granted, his new counsel was prepared, and the evidence presented at trial was not voluminous or complicated.   

Second, defendant challenged the district court's failure to dismiss for cause the juror who was a probation officer.  The Court held that the district court did not abuse its discretion in declining to dismiss the juror because those who engage in community supervision are not covered by 28 U.S.C. 1863, which provides that members of the fire and police departments are barred from jury service.  The Court's holding was in line with the Tenth Circuit.  

Third, the Court held that any error in admitting the Google geo-location data was harmless beyond a reasonable doubt because the evidence introduced against the defendant was "crushing."  The Court so held without deciding whether the Google geo-location data should have been excluded as fruit of the poisonous tree.  

Fourth, the Court held that evidence sufficiently supported defendant's convictions on all five robberies because, when viewed all together, the evidence established a modus operandi and a pattern.  In so holding, the Court included a chart of the robberies and their shared similarities.  The Court also noted that when modus operandi evidence supports an inference that the same person committed multiple crimes, a jury can consider identity evidence from other robberies.

Fifth, the Court, reviewing challenges to the case agent's testimony for plain error, found no error.     

Sixth, the Court held that even assuming error, cumulative error did not warrant vacatur of the convictions.  Defendant failed to show that his substantial rights were affected by the aggregation of the alleged errors.