Hall: Vacating Sentence and Remanding

In United States v. Hall, No. 22-10230 (Apr. 5, 2023) (Branch, Brasher, Ed Carnes), the Court held, as a matter of first impression, that a district court may not sentence a defendant to home confinement for violating the terms of his supervised release where the district court has also sentenced the defendant to the statutory maximum period of imprisonment for that violation.  The Court vacated Mr. Hall's sentence to the extent it imposed a term of home confinement and remanded for resentencing.  

Mr. Hall, a class C felon, violated the conditions of his supervised release.  After revoking his supervised release, the district court sentenced Mr. Hall to the statutory maximum two years' imprisonment and added one year of home confinement with location monitoring.  

The Court held that such a sentence is inconsistent with the limitation that a district court may impose home confinement "only as an alternative to incarceration."  As such, the district court lacked the authority to impose an additional year of home confinement on top of the statutory maximum sentence of incarceration.  In so holding, the Court joined the Fifth Circuit in United States v. Ferguson, 369 F.3d 847 (5th Cir. 2004), which reasoned that a court cannot impose the maximum term of incarceration under 18 U.S.C. § 3583(e)(3) and also impose a period of home confinement under (e)(4).       

Penn: Affirming ACCA Sentence Based on Florida Cocaine Sale Convictions

In United States v. Penn, No. 21-12420 (Mar. 24, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed the defendant’s ACCA sentence based on prior Florida sale-of-cocaine convictions.

In holding that the prior convictions were ACCA “serious drug offenses,” the Court rejected three arguments. First, circuit precedent foreclosed the defendant’s argument that a serious drug offense have a mens rea element requiring the defendant know the illicit nature of the substance, which Fla. Stat. 893.13 lacks.  Second, and in a question of first impression resulting in an extended discussion, the Court held that, although the least culpable conduct prohibited by 893.13 was “attempted transfer,” that conduct was covered by the word “distribution” in the ACCA definition and so was not overbroad. Third, applying Wooden, the Court held that the two prior convictions occurred on separate occasions because they occurred 30 days apart, and the Court rejected under plain error the defendant’s Apprendi argument, which was raised for the first time on appeal, because there was no precedent directly resolving the issue.

Batmasian: No Ancillary Jurisdiction Over Pardoned Defendant's Motion to Expunge Conviction

In United States v. Batmasian, No. 21-12800 (Mar. 24, 2023) (Branch, Luck, Antoon), the Court held that the district court lacked jurisdiction to consider the pardoned defendant’s motion to expunge his conviction.

The defendant filed his expungement motion in the district court that convicted him. But the Eleventh Circuit rejected the defendant’s reliance on the doctrine of ancillary jurisdiction. No court had ever expressly embraced such jurisdiction for a constitutional expungement request. And the Court declined to do so because the alleged constitutional violation—a purported denial of his First Amendment right to donate to charities—was the natural result of an otherwise valid arrest or conviction.

Files: Section 404 Does not Permit Sentence Reduction for Non-Covered Offenses, Admits Lengthy Discussion about Holding/Dicta

In United States v. Files, No. 21-12859 (Mar. 24, 2023) (Newsom, Luck, Tjoflat), the Court affirmed the denial of the defendant’s motion for a reduced sentence under Section 404 of the First Step Act.

The question in the case was whether the district court had authority to reduce the defendant’s sentence for a non-covered offense in addition to a covered offense. In Denson, the Court had previously stated that district courts could reduce a sentence only for a covered offense.  Here, the Court concluded that this statement in Denson was part of the holding of the case. And, it concluded, the Supreme Court’s decision in Concepcion did not abrogate that holding. The Court engaged in a lengthy discussion (which Judge Luck did not join) about when a statement is “necessary” to the result and thus forms part of the holding rather than dicta.

Judge Newsom, joined by Judge Tjoflat, concurred to explain why he believed it is a bad idea for appellate courts to issue alternative holdings.

Morel: Affirming Drug Convictions After Judge Interrupted Trial to Correct Misunderstanding of Law on Conspiracy

In United States v. Morel, No. 20-14315 (Mar. 23, 2023) (William Pryor, Rosenbaum, Marcus), the Court affirmed the defendant’s convictions for importing cocaine.

First, the district court interrupted the trial to instruct the jury about the law of conspiracy after a witness incorrectly used the term incorrectly, implying that he had to personally know the defendant in order to conspire with him. The district court’s sua sponte instruction was not an discretion or an impermissible departure from the court’s neutral role, as it merely and accurately clarified the law in order to prevent confusion, and did not otherwise comment on the witness’s testimony.

Second, the evidence was sufficient to support the jury’s finding that the defendant knew that the contraband on board the vessel was cocaine in particular.  Applying the prudent-smuggler doctrine, the Court emphasized, among other facts, that the defendant was communicating and working closely with one of the co-conspirators (who knew about the cocaine), the defendant was invited to unload the cocaine (which was visible in the packages), and the defendant was privy to the time and location of the drug shipment and its final destination.

Williams: Section 404 of First Step Does Not Mandate the Reduction of a Sentence Above the Post-FSA Statutory Range

In United States v. Williams, No. 21-12877 (Mar. 23, 2023) (William Pryor, Hull, Marcus), the Court affirmed the denial of the defendant’s motion for a reduced sentence under Section 404 of the First Step Act.

The defendant was eligible for a reduced sentence, and his life sentence exceeded the 30-year statutory maximum that applied after retroactive application of the Fair Sentencing Act. However, the Court held that the district court had the discretion to leave that life sentence in place because the text of the Fair Sentencing Act did not require the court to reduce any sentence, and the Supreme Court confirmed that understanding in Concepcion.  The Court rejected the defendant’s argument that leaving a sentence above the new statutory maximum was a per se abuse of discretion.  The Court explained that defendants cannot use Section 404 to re-litigate the legality of their sentences.  Finally, the district court adequately explained its decision to deny the motion by addressing the defendant’s arguments and weighing the 3553(a) factors.

Clowers: District Courts Remain Bound by Pre-Apprendi Judge-Made Drug-Quantity Findings in First Step Act/Section 404 Proceeding

In United States v. Clowers, No. 20-13074 (Mar. 14, 2023) (Jill Pryor, Grant, Anderson), the Court affirmed the denial of a motion for reduced sentence under Section 404 of the First Step Act.

The Court first agreed with the parties that engaging in a continuing criminal enterprise involving crack under 21 U.S.C. 848 was a “covered offense” under Section 404.  The defendant received a mandatory life sentence before Apprendi, and the judge rather than a jury made drug quantity findings for purpose of sentencing.  Applying the Eleventh Circuit’s decisions in Jones/Jackson, the Court held that the district court remained bound by that judge-made drug-quantity finding when determining what the statutory range would be under the Fair Sentencing Act.  Because the statutory range would remain the same based on that judge-made drug-quantity finding, and because the defendant received the statutory minimum sentence of life, the district court could not reduce his sentence under Section 404.

Shamsid-Deen: 922(g)(9) Defendant Failed to Prove Waiver of Jury Trial Right in State Court Was Not Knowing and Voluntary

In United States v. Shamsid-Deen, No. 20-11877 (Mar. 6, 2023) (Jill Pryor, Branch, Ed Carnes), the Court, on a government appeal, reversed the district court’s order granting the defendant’s motion to suppress.

The defendant was prosecuted under 18 U.S.C. 922(g)(9) for possessing a firearm after having previously been convicted of a “misdemeanor crime of domestic violence.” By statute, a prior conviction does not qualify as a “misdemeanor crime of domestic violence” where the defendant did not knowingly waive his right to a jury trial. In this case, the district court found that exception applied and therefore granted the defendant’s motion to suppress evidence of his prior Georgia battery conviction. The government appealed and the Eleventh Circuit reversed.  Since the district court’s ruling implicated the validity of a waiver of a constitutional right, and it involved a mixed question of law and fact, the Court reviewed the district court’s waiver ruling de novo, not for abuse of discretion. The Court also determined that the defendant bore the burden of production and persuasion to show that the waiver was not knowing and voluntary, since that issue was a statutory exception that did not negate an element of the offense. Finally, the Court concluded that the defendant failed to establish that he did not knowingly and voluntarily waive his right to a jury trial in Georgia based on the language of forms he signed and a transcript of the proceedings.

Judge Jill Pryor concurred only in the judgment, without issuing a written opinion.

Turner: Rule 704(b) Error Opining on Ultimate Issue Was Harmless in Felon in Possession Trial with Insanity Defense

In United States v. Turner, No. 20-12364 (Mar. 1, 2023) (Rosenbaum, Tjoflat, Moody), the Court affirmed the defendant’s felon in possession conviction.

At trial, the defendant raised an insanity defense.  Over the defendant’s objection, the government’s expert psychologist who had evaluated the defendant testified that he was able to appreciate the nature and quality and wrongfulness of his acts.  The Eleventh Circuit held that this testimony violated Rule 704(b) because it went to his mental state, which was an element of his insanity defense.  However, the Court held that this error was harmless because, even though the district court instructed the jury on the insanity defense, the defendant’s lay testimony of insanity was insufficient as a matter of law to establish that he had a severe mental disease that caused his wrongful conduct, as required by the Insanity Defense Reform Act of 1984.

Judge Rosenbaum dissent, opining that the error was harmless.  She emphasized that the majority usurped the role of the jury, the evidence was sufficient to instruct the jury, and the government failed to meet its burden to show that the Rule 704(b) error was harmless, as the insanity issue was important and close, the government intentionally elicited and emphasized the testimony, and there was no limiting instruction.

Heaton: Affirming Convictions under § 841(a) post-Ruan

In United States v. Heaton, No. 20-12568 (Feb. 14, 2023) (Wilson, Jill Pryor, Hull), the Court affirmed Dr. Heaton's convictions.   

Dr. Heaton was charged with one count of conspiracy to unlawfully distribute and dispense controlled substances, in violation of 21 U.S.C. §§ 841(b)(1)(C), 843, & 846; 102 counts of unlawful dispensing of controlled substances to patients, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); and 27 counts of aiding and abetting a patient's acquisition of controlled substances by deception, in violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2.  He proceeded to trial and was found not guilty on the conspiracy and guilty on all substantive counts.  

On appeal, he challenged the district court's jury instructions.  He first challenged the court's use of "or" instead of "and" in its § 841(a) offense instruction.  He argued that § 841(a) requires the government to prove that he prescribed medication both "outside the course of professional practice" and "for no legitimate medical purpose."  The Court disagreed, citing to prior caselaw and 21 C.F.R. § 1306.04(a). 

Dr. Heaton next argued that the court's instructions as to mens rea for § 841(a) ran afoul of the Supreme Court's recent decision in Ruan.  More specifically, he argued that the district court erred in instructing the jury to apply an objective standard to the "outside the usual course of professional practice" requirement.  The Court agreed that because the instruction allowed the jury to convict Dr. Heaton without considering whether he knowingly or intentionally issued prescriptions outside the usual course of professional practice, the jury instruction was erroneous under Ruan.  The Court, however, found any instructional error to be harmless because the evidence extensively proved beyond a reasonable doubt that Dr. Heaton knew his prescriptions were issued outside the usual course of professional practice.  In so holding, the Court distinguished this case from that of Ruan on remand, wherein the Court found the instructional error not to be harmless.   

Finally, the Court rejected Dr. Heaton's argument that § 841 is unconstitutionally vague as applied to him.  

Jackson: Affirming Denial of Motion to Reduce Sentence post-Concepcion

In United States v. Jackson, No. 19-11955 (Feb. 3, 2023) (William Pryor, Grant, Jung (M.D. Fla.)), the Court, on remand from the Supreme Court post-Concepcion, reinstated its prior decision affirming the denial of relief.  

Jackson moved to reduce his sentence under the First Step Act, arguing that he was eligible for a sentence reduction because a judge, not a jury, made the drug-quantity finding that increased his statutory range, in violation of Apprendi and Alleyne.  The Court affirmed the denial of his motion, holding that although he was convicted of a "covered offense," he did not prove that the reduction he sought would be "as if . . . the Fair Sentencing Act . . . were in effect at the time the covered offense was committed."  This was so because the Court held that in deciding motions for reduced sentences under the First Step Act, district courts may rely on earlier judge-found facts that triggered statutory penalties that the Fair Sentencing Act later modified.  In Mr. Jackson's case, because his sentence would have remained the same following consideration of the court's drug-quantity finding, any reduction would not be "as if" the Fair Sentencing Act had been in effect. 

The Court reaffirmed its holding after the Supreme Court's decision in Concepcion.  The Court first explained that Concepcion did not abrogate its holding that the district court is bound by a previous finding of drug quantity that could have been used to determine the movant's statutory penalty at the time of sentencing.  It so reasoned because, unlike Concepcion, its decision was concerned with an issue that arose before the sentencing court's discretion came into play--that is, determining how much of a drug the defendant possessed.  Concepcion, by contrast, addressed an issue that arises only after drug quantity and the corresponding statutory penalties have been established--that is, which factors the district court may consider in deciding an appropriate sentence.  The Court reaffirmed its conclusion that movants may not use a First Step Act proceeding to relitigate a drug-quantity finding.       

The Court next explained that Mr. Jackson could not use a motion for a reduced sentenced to correct an error based on Apprendi.  That his direct appeal was pending when Apprendi was decided did not change the calculus because a First Step Act motion cannot masquerade as a direct appeal.  Just as a movant may not use Apprendi to collaterally attack his sentence, he cannot rely on Apprendi to redefine his offense for purposes of a First Step Act motion.    

 

  

In re Grand Jury FGJ-21-01-MIA: Civil Contempt For Failing to Comply with Grand Jury Subpoena Was Not Appealable Without Accompanying Sanctions Order

In In re: Grand Jury Subpoena, FGJ-21-01-MIA, No. 21-13651 (Jan. 31, 2023) (Wilson, Jordan, Brasher), the Court dismissed the appeal for lack of jurisdiction.

The appellant was the custodian of business entities that were served with subpoenas to appear before a grand jury, produce documents, and certify that the documents satisfied the business records exception to hearsay. The appellant moved to quash the subpoenas and asserted a Fifth Amendment act-of-production privilege.  The district court denied the motion and then held him in civil contempt after he refused to comply.  However, the district court stayed issuance of sanctions pending appeal.  Applying Eleventh Circuit precedent, and disagreeing with Second Circuit precedent, the court of appeals held that a contempt order must be accompanied by sanctions in order to be an appealable final judgment.  Accordingly, the Court dismissed the appeal for lack of jurisdiction.

King: No Plain Tapia Error Despite Referencing Need for Drug Abuse Program

In United States v. King, No. 21-12963 (Jan. 23, 2023) (Rosenbaum, Grant, Tjoflat), the Court—without oral argument—affirmed the defendant’s 36-month sentence for violating his supervised release.

The Court rejected the defendant’s arguments that his sentence was substantively unreasonable.  Although the defendant argued that the sentence was a major upward variance from the guideline range of 4-10 months, he repeatedly accepted responsibility, and he was less than a year away from completing his supervision, the district court acted within its discretion by weighing the 3553(a) factors.

Responding to the dissent’s argument, the Court found that the district court did not commit plain error by sentencing the defendant based on his need for rehabilitation, in violation of the Supreme Court’s decision in Tapia.  The defendant forfeited that issue by failing to raise it on appeal, and his argument challenging the substantive reasonableness of his sentence did not cover this procedural error.  Even assuming that the district court committed an error, it did not plainly err or violate the defendant’s substantial rights.  The district court does not violate Tapia merely by discussing how defendants would benefit from a drug abuse program after it imposes sentence; it errs only when it imposes or extends a sentence for the purpose of promoting rehabilitation, which did not clearly occur here.

Judge Rosenbaum dissented because she believed that the district court plainly erred by giving significant weight to rehabilitation when imposing the sentence.

Scott: Upholding Medicare Fraud Convictions Over Challenge that Medical Testing Was Covered

In United States v. Scott, No. 21-11467 (Jan. 20, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s healthcare fraud convictions.

First, and assuming that de novo review applied, the Court rejected the defendant’s belated challenge to the indictment on the ground that Medicare actually covered the testing he performed.  And even if it did, he would not have been entitled to dismissal of the indictment, as Medicare coverage for the particular tests would have been a factual issue to be resolved at trial, and the defendant failed to make that argument in the district court.

Second, the Court concluded that the evidence was sufficient to support the convictions.  Specifically, the Court found sufficient evidence to support his willful intent to defraud Medicare based on circumstantial evidence.

Dupree (En Banc): Inchoate Offenses are not "Controlled Substance Offenses" under the Guidelines Because the Text is Unambiguous, Precluding Deference to the Commentary

In United States v. Dupree, No. 19-13776 (Jan. 18, 2023), the en banc Court held that the definition of “controlled substance offense” in U.S.S.G. 4B1.2(b) does not include inchoate offenses like conspiracy.

In an opinion by Jill Pryor, and joined by Chief Judge Bill Pryor and Judges Wilson, Jordan, Rosenbaum, Newsom, Lagoa, and Brasher, the Court held that the definition in the text of 4B1.2(b) unambiguously excludes inchoate offenses.  Because there was no ambiguity, the Court was precluded from deferring to the commentary’s broader definition (expressly including inchoate offenses) under the Supreme Court’s recent decision in Kisor clarifying its earlier decision Stinson.

Chief Judge Pryor concurred in order to correct a common misconception.  The Guidelines’ commentary typically goes through the same notice-and-comment and congressional review process as amendments to the text of the Guidelines themselves. He encouraged the Commission to move what normally goes in the commentary into the text of the Guidelines.

Judge Grant concurred in the judgment, agreeing with the result but criticizing the majority for effectively overruling Stinson, which she viewed as distinct from the administration law cases upon which it relied.  She feared that the majority’s opinion may “unsettled much of our case law” because courts must now examine whether the text of the Guidelines is ambiguous before consulting the commentary.

Judge Luck, joined by Judge Branch, dissented.  He opined that the majority’s application of Kisor to Stinson effectively overruled Stinson, and Kisor did not apply to Stinson at all.

Oudomsine: Upholding Upward Variance in Pandemic Benefits Fraud

In United States v. Oudomsine, No. 22-10924 (Jan. 18, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed the defendant’s 36-month sentence for providing false information to obtain pandemic-related benefits.

The district court varied upward to 36 months from a guideline range of 8-14 months.  The sentence was not procedurally unreasonable because the district court adequately explained the variance.  The district court emphasized that the fraud was atypical compared to other fraud cases, in that the defendant used his education to steal money from a federal relief program designed to save the country during the pandemic, and the district court did not rely on any clearly erroneous facts.  Nor was the sentence was substantively unreasonable.  The Court rejected the defendant’s argument that the district court gave too much weight to deterrence since the pandemic benefits program was now over, and that the court did not “like him” because he spent much of the money to buy a single Pokemon card.  

Moran: Upholding Convictions for Attempted Child Pornography Production

In United States v. Moran, No. 21-12573 (Jan 13, 2013) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s convictions for attempting to produce child pornography.

The defendant commented on several “mom blog” posts asking mothers to display sexually explicit imagines of their young daughters.  First, the Court rejected the defendant’s sufficiency argument that he lacked the specific intent to have bloggers post child pornography because, even if that was unlikely to happen, he still could have desired that result. And that was true even if he also intended to troll people online.

Second, the evidence was sufficient to allow a jury to conclude that the defendant knew that, if produced, the child pornography he sought would travel in interstate commerce.  The Court rejected the defendant’s argument that he first had to know that his attempt would succeed.

Finally, and reviewing for plain error, the evidence was sufficient to show that the defendant took a “substantial step” toward committing the offense.

Harrison: Georgia robbery statute is divisible, and Georgia robbery by intimidation is a "crime of violence" under the enumerated offense clause

In United States v. Harrison, No. 21-14514 (Jan. 10, 2023) (Wilson, Jill Pryor, Ruiz), the Court held, on a government appeal, that Georgia’s robbery statute is divisible, and that Georgia robbery by intimidation is a “crime of violence” under the Guidelines.

First, the Court held that, under Mathis, Georgia’s robbery statute was divisible into three separate crimes: robbery by force, robbery by intimidation, and robbery by sudden snatching.  The Court reached that conclusion based on the text of the armed robbery statute, Georgia case law, and the Georgia jury instructions.  The Court rejected the Fourth Circuit’s contrary conclusion based on its reading of the jury instructions.  Having determined that the defendant was convicted of robbery by intimidation, the Court held that it was a “crime of violence” under the enumerated offense clause of the Guidelines because Georgia robbery by intimidation satisfied the “generic” definition of robbery. 

Esformes: Upholding Convictions/Sentences Over Numerous Challenges and Government Misconduct

In United States v. Esformes, No. 19-13838 (Jan. 6, 2023) (William Pryor, Jill Pryor, Grant), the Court affirmed the defendant’s healthcare fraud/kickback/money laundering convictions, as well as restitution and forfeiture awards. 

As an initial matter, the defendant’s challenges to his 20-year prison sentence were moot because President Trump commuted that part of his sentence.  The defendant also argued that the commutation prevented the government from re-trying him on one count on which the jury hung.  However, the Eleventh Circuit lacked jurisdiction to review that argument because the hung count was not part of the final judgment over which the Court had jurisdiction.

Second, the district court properly declined to dismiss the indictment or disqualify the prosecution team in light of admitted government misconduct intruding on attorney-client privilege, because the defendant could not show “demonstrable prejudice.”  Circuit precedent foreclosed any presumption of prejudice, and the defendant did not make any effort to show prejudice, which the district court found did not exist because the privileged materials did not form the basis of the charges, were not admitted at trial, and did not give the government any strategic advantage.  Whether the prosecutors acted in bad faith was not relevant.

Third, federal prosecutor Elizabeth Young did not have a conflict of interest.  Her professional interest in avoiding and challenging sanctions did not make her an “interested prosecutor” that required her recusal.  And she did not violate the advocate-witness prohibition by participating in the hearing on the motion to disqualify her.  The defendant invited any such error by calling her to the stand.  And, in any event, this argument would fail because she was not testifying to the jury about the charges but rather to the magistrate judge about her own investigatory work.

Fourth, the district court properly admitted the government’s expert testimony.  The district court completed the Daubert evaluation before admitting the testimony, and it was not an abuse of discretion for the court to defer ruling until after the jury heard the testimony.  Nor was it an abuse of discretion to actually admit the testimony under Daubert.

Fifth, the court’s restitution order was not clearly erroneous because the loss amount was supported by record evidence.

Finally, the court’s forfeiture order was lawful because the underlying money laundering convictions were supported by sufficient evidence.  And Supreme Court precedent permitted the judge to make its own calculation of the forfeiture amount, even if it differed from the jury’s special verdict.

 

Judge Grant authored a concurrence.  Although it was harmless here (because the expert opinion was properly admitted), she opined that deferring a ruling on admissibility of expert testimony until after the jury hears it is fraught with risk and should be avoided.  

Downs: Transferring Photos from Phone to Hard Drive is "Production" Under Child Pornography Statutes

In United States v. Downs, No. 21-10809 (Jan. 6, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s convictions for producing and possessing child pornography.

First, the Court held that the evidence was sufficient to satisfy the interstate-commerce element because transferring photos from a cell phone to hard drives constituted “production,” and the hard drives were manufactured abroad.

Second, the district court did not err by discharging an impaneled-but-not-sworn jury in light of an impending storm.  Because the jury was never sworn, jeopardy never attached, and the defendant therefore had no right to have his case decided by the jury that was initially impaneled.  Nor did the district court plainly err by discharging the panel outside the defendant’s presence; the pre-trial hearing about the discharge of an unsworn jury did not implicate the Confrontation Clause or the due process right to be present in order to defend against the charges.  While Rule 43 plainly did require that the defendant be present, this error did not affect his substantial rights.

Third, the victim testified that the defendant took photos of her using a flip phone, while the forensic expert testified that the photos were taken with a particular Samsung model.  The defendant argued that, because that Samsung model was not a flip phone, the victim’s testimony was “factually impossible” and the evidence was therefore legally insufficient.  The Court rejected that argument, noting that credibility questions were for the jury to resolve, and there was no evidence about whether the Samsung model was a flip phone or not.

Ruan: Vacating Substantive 841 Convictions due to Erroneous Jury Instruction on Mens Rea

In United States v. Ruan, No. 17-12653 (Jan. 5, 2023) (Wilson, Newsom, Coogler) (per curiam), the Court affirmed in part and vacated in part the defendants' convictions.

This case was on remand from the Supreme Court, which clarified the mens rea standard for a doctor’s liability under the federal drug statute, 21 U.S.C. 841.  The Supreme Court explained that the defendant must have knowingly or intentionally dispensed a controlled substance, and knowingly or intentionally did so in an unauthorized manner.  What matters in that regard is the defendant’s subjective mens rea.  Applying that new standard to the facts of this case, the Eleventh Circuit held that the district court’s “good faith” instruction was insufficient because it did not make clear that the defendant’s subjective intent was what mattered.  As to the defendants’ substantive drug convictions, the Eleventh Circuit held that this erroneous instruction was not harmless because the jury may have convicted based on an objective reasonable-doctor standard and may not have convicted had it been properly instructed on a subjective standard.  However, the Court found that the erroneous instruction was harmless as to the remaining convictions for conspiracy to violate the Controlled Substances Act, conspiracy to commit health care fraud, conspiracy to violate the Anti-Kickback statute, conspiracy to commit mail or wire fraud, conspiracy to violate RICO, and money laundering.

Jackson: Court Reverses Course and Applies Version of CSA Schedules in Place When Defendant Was Convicted of Prior State Drug Offense

In United States v. Jackson, No. 21-13963 (Dec. 13, 2022) (Rosenbaum, Jill Pryor, Ed Carnes), the Court reversed course and held that the Supreme Court's reasoning in McNeill v. United States, 563 U.S. 816 (2011), requires the conclusion that ACCA's "serious drug offense" definition incorporates the version of the controlled-substances list in effect when the defendant was convicted of his prior state drug offense.

Mr. Jackson's prior convictions included convictions for violating Fla. Stat. § 893.13 in 1998 and in 2004 with conduct involved cocaine.  In 1998 and in 2004, § 893.13 criminalized selling, manufacturing, delivering, or possessing with the intent to sell, manufacture, or deliver, cocaine and cocaine-related substances, including a substance called ioflupane.  The federal version of Schedule II of the Controlled Substances Act ("CSA") also encompassed ioflupane in 1998 and 2004.  The federal government only exempted ioflupane from Schedule II in 2015.  So, in 2017, when Mr. Jackson possessed the firearm that resulted in his federal conviction, ioflupane was not a controlled substance "as defined . . . [under] the Controlled Substances Act."

Be that as it may, however, the Court ultimately held that ACCA's definition of "serious drug offense" incorporates the version of the controlled-substances schedules in effect when the defendant was convicted of his prior state drug offense.  The Court so held because of the Supreme Court's reasoning in McNeill, wherein the Supreme Court construed ACCA’s third criterion for qualifying prior state drug offenses: the requirement that the state law prescribe “a maximum term of imprisonment of ten years or more” as a punishment for that drug offense.  In line with McNeill, the Court reasoned that it could not be correct that subsequent changes in state law could erase an earlier conviction for ACCA purposes.  The Court also reasoned that because it must construe the definition of a federal "serious drug offense" to incorporate the CSA in existence at the time of the prior federal drug conviction, it could not simultaneously construe the federal “serious drug offense” definition’s single use of that term—Controlled Substances Act—to incorporate the federal drug schedules in effect at the time the defendant committed the federal firearm offense.  In the Court's view, the structure of ACCA’s parallel definitions of “serious drug offense” for state and federal prior convictions logically requires the conclusion that the state-offense definition incorporates the federal drug schedules in effect at the time of the prior state drug conviction.  As such, Mr. Jackson's prior cocaine convictions qualify as "serious drug offenses" under the ACCA.  

Judge Rosenbaum filed a separate concurrence to express "deep[] concern[] that [the Court's] reading seemingly requires the 'ordinary person' to be an expert in the ACCA and in historical knowledge of the federal drug schedules."  She noted that incorporating the federal drug schedules in effect at the time of the federal firearm offense "would be far more consistent with how [courts] generally construe statutes," as well as consistent with "Congress's determination to decriminalize certain substances."  As a result, she "urge[d]" Congress to consider amending the statute to incorporate the version of the controlled-substances list in effect when the defendant commits his federal firearm offense."              

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

In United States v. Garcon, No. 19-14650 (Dec. 6, 2022), the en banc Court--in an opinion authored by Chief Judge Pryor--considered whether, in the First Step Act, the word "and" means "and" with regard to a grant of safety-valve relief.  More specifically, the en banc Court considered the language of 18 U.S.C. § 3553(f)(1), which empowers a court to grant a criminal defendant relief from a mandatory minimum sentence only if "the defendant does not have" "more than 4 criminal history points," "a prior 3-point offense[,] . . . and . . . a prior 2-point violent offense."    

The Majority--in an opinion drafted by Chief Judge Pryor and joined in full by Judges Wilson, Jill Pryor, Newsom, Luck, and Lagoa--after considering the text of the statute and applying the ordinary-meaning canon, held that because the conjunctive "and" joins together the enumerated criminal history characteristics in (A)-(C), a defendant must have all three before he is ineligible for safety-valve relief.  In so holding, the Majority specifically rejected the government's distributive reading of the word "and," declining "to adopt that novel reading when it appears to have been crafted by the government specifically for this statute to achieve its preferred outcome."      

Judge Rosenbaum concurred in the judgment only, noting that she would have resolved the issue by applying the rule of lenity.  

Judge Newsom, joined by Judge Lagoa, filed a separate concurrence to note that no canon of construction can make the word "and" mean "or" because the text is unambiguous.  If Congress made a mistake, it should exercise its authority to amend the statute; "Article III doesn't empower [the Court] to do Congress's job for it."

Judge Jordan dissented, explaining that, depending on the context, the word "and" can be read disjunctively in legal texts.  He also set out the views of the Senators who proposed the provision that became § 3553(f)(1) as further support.  

Judge Branch, joined in full by Judges Grant and Brasher, and in part by Judge Jordan, dissented.  She noted the circuit split on this issue before reasoning that the Majority's interpretation was contrary to the structure and context of the statute, and created two surplusage problems--first, it renders an entire subsection, (f)(1)(A), redundant; and second, it disregards Congress's plain instruction that all pertinent statutory determinations for purposes of § 3553(f)(1) are to be made "as determined under the sentencing guidelines."  After consideration of context and structural cues, in her opinion, the best reading of § 3553(f)(1) is that it bars safety-valve relief for defendants who have any one of the enumerated criminal history characteristics in (A)-(C).      

Judge Brasher authored a separate dissent to comment on criminal-history-based sentencing and to "give some advice to district judges about how to deal with the majority's decision."   

BGG: In Government Appeal, District Court Abused its Discretion by Dismissing Information With Prejudice Under Rule 48(a)

In United States v. B.G.G., No. 21-10165 (Nov. 22, 2022) (Wilson, Luck, Lagoa), the Court, on appeal by the government, vacated the dismissal of an information with prejudice under Rule 48(a).

During the pandemic, the Southern District of Florida imposed a temporary moratorium on grand juries.  Concerned that they would not be able to charge the defendant within the statute of limitations, prosecutors filed an information before the statute of limitations expired.  Then, after the limitations period expired, the government moved to dismiss the information under Rule 48(a) without prejudice, which it believed would have triggered a six-month extension within which they intended to bring an indictment.  The district court, however, dismissed the information with prejudice, precluding a subsequent indictment.

On appeal, the Eleventh Circuit held that the district court abused its discretion by committing five separate legal errors.  First, the district court failed to apply the presumption of good faith to the government’s Rule 48(a) motion to dismiss.  That presumption applies even where, as here, the government articulates a reason for the dismissal.  Second, the district court failed to require the defendant to rebut the presumption by showing that the government sought the dismissal in bad faith.  Third, the district erroneously focused on the government’s reasons for filing the information (to preserve the availability of a future prosecution) rather than its reasons for seeking the dismissal (the defendant’s refusal to waive an indictment and consent to an information).  Fourth, the district court failed to apply the correct test in deciding whether to grant leave to dismiss even where the government overcomes the presumption of good faith: it failed to find that the dismissal went to the merits or demonstrated a purpose to harass.  Finally, the district court erred in dismissing with prejudice; where the government, the moving party, seeks dismissal under Rule 48(a) without prejudice before trial, then any such dismissal must be without prejudice and cannot bar a second prosecution.  The Court expressed no view on whether any subsequent prosecution would be barred by the statute of limitations.

Judge Wilson dissented.  He opined that the government’s dismissal was in bad faith and for the purpose of harassment, and it therefore should have been dismissed with prejudice.  In his view, the government sought to achieve a tactical advantage contrary to the defendant’s rights.

Malone: Finding Breach of Plea Agreement by Government

In United States v. Malone, No. 20-12744 (Oct. 26, 2022) (Rosenbaum, Tjoflat, Moody (M.D. Fla.)), the Court, applying plain-error review, vacated Mr. Malone's sentence and remanded for resentencing before a different district court judge.

Mr. Malone was charged with (1) three counts of wire fraud, in violation of 18 U.S.C. § 1343; (2) one count of interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C. § 2312; and (3) one count of sale of a stolen motor vehicle, in violation of 18 U.S.C. § 2313.  He agreed to plead guilty to four counts in exchange for the government's agreement to dismiss one count.  The government reserved the right to oppose a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 if it received information that Mr. Malone acted inconsistently with acceptance of responsibility between the date of the plea hearing and the date of the sentencing hearing.  The government also agreed to move for a one-level reduction for acceptance of responsibility, and to recommend a sentence within the advisory Guidelines range as calculated by the court at the sentencing hearing. 

The PSR recommended that Mr. Malone be denied acceptance of responsibility, which resulted in a guidelines range of 57 to 71 months' imprisonment.  Mr. Malone objected, arguing he had accepted responsibility, and that therefore, his guidelines range should instead be 41 to 51 months' imprisonment.  The government filed a sentencing memorandum seeking a term of imprisonment of 66 months--it did not explain its recommendation other than a general reference to the probation-recommended guidelines range and the § 3553(a) factors--and argued against any reduction at Mr. Malone's sentencing hearing, relying on pre-plea conduct.  The government also argued against any downward variance.  The district court declined to award any deduction for acceptance of responsibility, denied Mr. Malone's motion for a downward variance, and sentenced him to 71 months' imprisonment.      

On appeal, Mr. Malone argued that the government breached the plea agreement by relying on Mr. Malone's pre-plea conduct to argue against acceptance of responsibility and against a sentence within the guidelines range.  The Court--reviewing for plain error because Mr. Malone did not object before the district court that the government had breached the plea agreement--agreed with Mr. Malone.  Applying the framework set forth in Puckett v. United States, 556 U.S. 129 (2009), the Court found error, that was plain, that affected Mr. Malone's substantial rights.  The Court also worried that the government's "repeated, clear violations of the plea agreement" seriously affected the fairness, integrity, and public reputation of the judicial proceedings.  As such, the Court remanded for resentencing according to the terms of the plea agreement before a different judge.       

Judge Tjoflat dissented.  He asserted that such a claim--the government's unobjected-to breach of a plea agreement--cannot be raised on direct appeal (because it is not an error committed by the district court), and instead must be raised in a collateral attack in order to develop a complete factual record as to why Mr. Malone's attorney did not object.  He also asserted that the majority's analysis was improper because it is premised on the idea that the government can withhold evidence from sentencing judges based on promises made in plea agreements.  He recommended that the Court take up en banc the issue of the government's obligations under 18 U.S.C. § 3661 at sentencing.     

Conage: Fla. Stat. 893.135 Trafficking Is a "Serious Drug Offense" Under the ACCA

In United States v. Conage, No. 17-13975 (Sept. 30, 2022) (per curiam), the Court affirmed the defendant’s ACCA sentence based on a prior drug trafficking conviction under Fla. Stat. 893.135.

The defendant argued that his prior conviction was not a ACCA “serious drug offense” because 893.135 can be committed by purchase, whereas the ACCA requires possession with intent to distribute.  In a prior opinion, the Eleventh Circuit certified a question to the Florida Supreme Court about whether “purchase” under 893.135 necessarily required actual or constructive possession.  The Florida Supreme Court held that it did.  In light of the Florida Supreme Court’s opinion, the Eleventh Circuit rejected the defendant’s argument and affirmed his ACCA sentence.

Grushko: Upholding Access Device Fraud Convictions/Sentences Over Various Challenges

In United States v. Grushko, No. 20-10438 (Sept. 23, 2022) (Jordan, Jill Pryor, Marcus), the Court affirmed the defendants’ convictions and sentences for conspiracy to commit access device fraud.

First, the Court held that officers did not violate the Fourth Amendment by entering the defendants’ home after detaining them outside.  Under the totality of the circumstances, the officers had reason to believe that one of the defendants was still inside the home because they did not know the identity of the men they had detained.  Although they had previously seen a picture of the defendant, his appearance had since changed, and the officers were not permitted to look through the wallets of the men because they were not under arrest.  And the officers heard noises from inside the home, and so had reason to believe that the defendant was still inside.

Second, the district court did not abuse its discretion in making comments to the voir dire panel about types of forensic evidence that might be seen on TV.  Although the statements were unnecessary and unwise, it was not reversible error because the court did not suggest that the government did not have to prove the elements or was relieved its burden of proof.  Nor did the statements create a mandatory presumption in favor of the government or entitle the jury to discount the defendant’s arguments in closing about whether the absence of fingerprint evidence created a reasonable doubt.

Third, as for the sentences: it was not impermissible double counting to apply a two-level enhancement for possessing device-making equipment just because that conduct underlied the conviction; there was no clear error in applying an aggravating-role enhancement because the defendants were organizers and leaders of the scheme, which involved another participant, and it did not matter if the two defendants were equally culpable; the district court adequately explained the sentence, and so it was not procedurally unreasonable; and any error as to the loss calculation was harmless because the court said it would have imposed the same sentence, and that sentence was not substantively unreasonable.

Judge Jordan concurred.  He joined the opinion in full, but wrote separately to emphasize that the court’s statements during voir dire were improper.

Doak: Affirming Convictions and Sentences for Transporting and Sexually Abusing Minors

In United States v. Doak, No. 19-15106 (Sept. 7, 2022) (Grant, Luck, Hull), the Court largely affirmed the defendants’ convictions and sentences for offenses involving the transportation and sexual abuse of minors.

As to the counts under 2423(a)—charging the transportation of minors with the intent that they engage in unlawful sexual activity—the defendants argued that the indictment was insufficient because it omitted the underlying state statutes prohibiting the sexual activity.  The Court rejected that argument because the specific state-law offenses are means rather than elements of a 2423(a) offense.  Thus, the state statutes did not need to be included in the indictment; including the statutory language of 2423(a) was enough.  Nor were the defendants deprived of fair notice; although it is best practice to include the state statutes, the indictment here contained key details about the defendant’s intended sexual activity. 

The Court next rejected the defendants’ sufficiency arguments.  As for the main defendant, the evidence at trial was sufficient for a jury to find that he transported the minors with an intent to sexually abuse the minors; even if he had other innocent reasons as well, that did not allow him to elude liability.  As for the co-defendant, who was convicted of aiding and abetting, the evidence was sufficient for a jury to find that she helped the other defendant transport the minors with the knowledge that he was sexually abusing them; it did not matter whether she disapproved of his conduct.

The Court next rejected the defendants’ evidentiary arguments.  First, the Court found that any error under Rule 412 in preventing the defense to offer evidence about one of the victim’s other sexual behavior was harmless; that evidence was offered to show that someone else had abuse her, but the defense was otherwise permitted to advance that theory, and the contrary evidence was substantial.  Second, the Court rejected the defendants’ argument that an FBI forensic expert’s testimony about how children process and disclose incidents of abuse was unreliable, as the expert had participated in thousands of such interviews, and the testimony helped the jury understand why the victims responded differently to the abuse.  Third, the district court did not abuse its discretion under Rule 404(b) or 403 by admitting a video of the defendant slapping the victims’ brother, since it explained why the victims felt threatened by the defendants and why they silently endured the abuse.

 

As for sentencing, the government cross-appealed the co-defendant’s statutory minimum sentence, arguing that it was substantively unreasonable.  However, the Court found no abuse of discretion: the district court did not improperly give her a lower sentence because she merely helped the main defendant as an aider and abettor; it did not overlook her own abuse of the minors and lack of remorse; and because the district court’s weighing of the 3553(a) factors was a close call, that meant there was no abuse of discretion even though the Court might have gone the other way.  In addition, the district court did not clearly err by imposing a special assessment; the defendant was not indigent because he previously failed to disclose that he owned real estate.  Finally, as to restitution, the district court properly relied on a clinical psychologist’s testimony about estimated therapy costs, but the district court erred by ordering the defendants to pay more in living expenses than what the victim herself admitted was an overestimate.

Ifediba: Affirming Healthcare Fraud Convictions and Sentences

In United States v. Ifediba, No. 20-13218 (Aug. 25, 2022) (Jill Pryor, Branch, Ed Carnes), the Court affirmed the defendants' convictions and sentences.   

Mr. Ifediba, a doctor, operated a clinic called CCMC, and employed his sister, Ms. Ozuligbo, as a nurse there.  Mr. Ifediba was alleged to have been running a "pill mill" to distribute controlled substances to patients who had no medical need for them, as well as running an allergy-fraud scheme.  Mr. Ifediba and Ms. Ozuligbo were indicted on substantive counts of health care fraud, conspiracy to commit health care fraud, money laundering of the clinic's unlawful proceeds, and conspiracy to money launder.  Mr. Ifediba was also indicted for unlawfully distributing controlled substances for no legitimate medical purpose and for operating CCMC as a "pill mill."  

On appeal, Mr. Ifediba first challenged the district court's exclusion of his evidence of good care he provided his patients to prove that his medical practice was legitimate.  The Court agreed with the district court that such evidence was improper character evidence because evidence of good conduct is not admissible to negate criminal intent.  The Court also held that the exclusion of such evidence did not violate Mr. Ifediba's constitutional right to present a defense.      

Next, he challenged the district court's decision not to question all jurors individually after dismissing an alternate juror upon learning that the alternate had independently researched the case outside of court.  The Court found that the district court acted within its discretion in addressing the juror misconduct and then instructing the jury collectively.  

Third, he challenged the sufficiency of the evidence supporting his substantive health care fraud convictions that were based upon evidence from medical records rather than patient testimony.  The Court held that patient records were sufficient to support Mr. Ifediba's convictions for substantive health care fraud.  Documentary evidence alone can be sufficient to establish the elements of an offense.   

Finally, he challenged his sentence by disputing the district court's drug-quantity calculation on which the sentence was based.  The PSI calculated the quantity of illegal substances attributable to Mr. Ifediba to be between 30,000 and 90,000 kilograms.  The estimate came from an analysis of Alabama's Prescription Drug Monitoring Program ("PDMP") data spanning the charged conspiracy period.  Mr. Ifediba objected, arguing that the court should derive the drug quantity using only the prescriptions admitted into evidence at trial that the jury found to be unlawful--which would have totaled between 1,000 and 3,000 kilograms.  The Court disagreed with Mr. Ifediba and found his sentence to be procedurally reasonable.       

Ms. Ozuligbo separately appealed the court's exclusion of her cultural-defense evidence proffered to demonstrate that Nigerian cultural norms required her to obey her older brother.  The Court agreed with the district court that such evidence was irrelevant.    

Utsick: Affirming Sentence and Order of Restitution

In United States v. Utsick, No. 16-16505 (Aug. 22, 2022) (Newsom, Marcus, Covington (M.D. Fla.)), the Court affirmed Mr. Utsick's sentence and order of restitution.   

Mr. Utsick was charged with nine counts of mail fraud, in violation of 18 U.S.C. § 1341 based upon an earlier civil action brought by the SEC regarding securities fraud.  Before authorities could arrest him, however, he fled to Brazil.  The United States filed an extradition request, which Brazil granted.  Mr. Utsick then returned to the United States on the eve of his trial.  He entered into a plea agreement--agreeing to plead guilty to one count of wire fraud--and the court sentenced him to 220 months' imprisonment and ordered him to pay $169,177,338 in restitution.  On appeal, he challenged his sentence and order of restitution as violative of the extradition treaty between the United States and Brazil as well as the voluntariness of his guilty plea.  

First, Mr. Utsick argued that his sentence and restitution order violated the terms of his extradition order, the extradition treaty between the United States and Brazil, and the international law doctrine known as the "rule of specialty."  He claimed that all three barred the district court from relying on any conduct prior to November 30, 2005 to determine his sentence.  The Court was unpersuaded.  It noted that when sentencing after extradition, the rule of specialty does not restrict the scope of proof of other crimes that may be considered in the sentencing process and does not control the evidentiary procedural rules of American Courts.  While the rule of specialty bars proof of other crimes in order to exact punishment for those other crimes, it does not bar proof of other crimes as a matter germane to the determination of punishment for the extradited crime.  The Court also found no plain error in the restitution order.  

Second, the Court was also unpersuaded by Mr. Utsick's argument that he entered his guilty plea without a clear understanding of the parameters of his conviction and without the requisite mental competence to knowingly enter into the plea.   

Alvarado-Linares: VICAR Murder and Attempted Murder Crimes of Violence Under § 924(c) Elements Clause

In Alvarado-Linares v. United States, No. 19-14994 (Aug. 16, 2022) (Newsom, Branch, Brasher), the Court affirmed the district court's denial of Mr. Alvarado-Linares's Davis-based § 2255 motion.    

Mr. Alvarado-Linares was convicted of one count of conspiracy under the Racketeer Influenced Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. § 1962(d); four counts under the Violent Crimes in Aid of Racketeering Act ("VICAR"), in violation of 18 U.S.C. § 1959(a)--two for murder and two for attempted murder, in violation of Official Code of Georgia §§ 16-5-1(a) and 16-4-1; and four counts of using a firearm in committing those offenses, in violation of 18 U.S.C. § 924(c).  He was sentenced to three concurrent life sentences plus eighty-five years.  Mr. Alvarado-Linares filed a motion to vacate his four firearms convictions--which resulted in 85-years of consecutive imprisonment--as unconstitutional in light of Davis. 

The Court granted a certificate of appealability on one issue: whether Mr. Alvarado-Linares's four firearms convictions are unconstitutional in light of Davis.  To resolve the issue, the Court noted that Mr. Alvarado-Linares must "bear the burden of showing that he is actually entitled to relief on his Davis claim, meaning he will have to show that his § 924(c) convictions[s] resulted from application of solely the [now-unconstitutional] residual clause," citing to In re Hammoud and Beeman.      

The Court, applying the modified categorical approach, and looking through the VICAR statute to the elements of the underlying state predicate--Georgia malice murder--held that Georgia malice murder is a crime of violence under § 924(c)(3)'s elements clause.  The Court also noted that a VICAR murder conviction predicated on federal murder would also meet the definition of crime of violence.  The Court then held that VICAR attempted murder--both under Georgia and federal law--is also a crime of violence under the elements clause because a conviction for attempted murder requires the government to prove--as an element of the offense--the use or attempted use of physical force.  Finally, the Court reasserted that aiding and abetting offenses can qualify as crimes of violence under § 924(c).  So, even though Mr. Alvarado-Linares's VICAR murder and attempted murder convictions were premised on an aiding and abetting theory, they nevertheless count as crimes of violence under § 924(c).      

Therefore, because Mr. Alvarado-Linares's VICAR convictions predicated on murder and attempted murder qualify as crimes of violence under § 924(c)'s elements clause, his four § 924(c) convictions remain valid after Davis.  

Judge Newsom filed a concurring opinion, writing separately "to ask whether the 'categorical approach' to identifying 'crime[s] of violence' has, to use a technical term of art, jumped the shark."  In Judge Newsom's view, the VICAR statute itself--where VICAR stands for Violent Crime in Aid of Racketeering--indicates that VICAR offenses are crimes of violence.         

Pate: § 1521 Applies to Both Current and Former Federal Officers and Employees

In United States v. Pate, No. 20-10545 (Aug. 10, 2022) (Newsom, Branch, Lagoa), the Court affirmed Mr. Pate's convictions predicated on violations of 18 U.S.C. § 1521, which prohibits the filing of a false lien or encumbrance against the property of any officer or employee of the United States on account of the performance of official duties.  

Mr. Pate was accused of filing various false liens against the former Commissioner of the Internal Revenue Service and the former Secretary of the Treasury for acts they performed as part of their official duties.  He filed these false liens after they had left their positions with the federal government.  On appeal, the Court considered whether § 1521 applies to false liens filed against former federal officers and employees for official actions they performed while in service with the federal government. 

The Court held that the plain language of § 1521 covers both current and former federal officers and employees.  For purposes of § 1521, Congress premised liability on action taken against "an individual described in section 1114," which itself addresses "any officer or employee of the United States or of any agency in any branch of the United States Government." As such, and giving effect to all of § 1521's provisions, the Court reasoned that reading § 1521 to limit its scope only to current officers and employees would fail to give effect to the phrase, "on account of the performance of official duties."  Section 1521 makes it illegal to file a false lien against the property of a federal officer or employee because of something he did as part of his official duties.  Thus, because § 1521’s prohibition depends upon what an individual did while acting as a federal officer or employee, and not simply his employment status at the time of the action at issue, the natural reading of the statute’s language leads to the conclusion that the terms “officer” and “employee” encompass both current and former officers and employees. 

Judge Newsom dissented.  He noted that this case raised a straightforward question of statutory interpretation: Is a former government official an "officer or employee of the United States" within the meaning of § 1114 and, thereby, of § 1521? Affording the quoted language its ordinary meaning, he would answer the question in the negative.  Therefore, because Mr. Pate's filed the liens against individuals when they were no longer officers or employees of the United States, Judge Newsom would have held that Mr. Pate's conduct fell outside the scope of § 1521's prohibition.           

Witt: Affirming Convictions and Sentence for Livestock Forage Disaster Program Fraud

In United States v. Witt, No. 21-10557 (Aug. 9, 2022) (Newsom, Marcus, Middlebrooks (S.D. Fla.)), the Court affirmed Ms. Witt's convictions and sentence. 

Ms. Witt was convicted for her part in a scheme to defraud the federal government out of relief funds intended for farmers affected by drought and fire (the Livestock Forage Disaster Program).  She was convicted of one count of conspiracy to commit wire fraud; two counts of theft of government funds; and one count of aggravated identity theft. 

On appeal, Ms. Witt first challenged the district court's denial of her motion for a new trial, arguing that the weight of the evidence preponderated in favor of a not guilty verdict.  The Court first noted that the government misunderstood Ms. Witt's argument on appeal, and clarified that a challenge to the denial of a motion for a new trial involves a different inquiry from that of a challenge to the sufficiency of the evidence.  The Court then rejected Ms. Witt's challenge.     

Next, Ms. Witt challenged the substantive reasonableness of her sentence, arguing that the district court should have sentenced her to house arrest rather than a traditional prison sentence.  The Court disagreed, finding her sentence of 28 months' imprisonment reasonable.  The Court noted that under 18 U.S.C. § 3582(a), district courts only "impose a term of imprisonment," but that the implementation of that sentence is left to the discretion of the BOP--that is, district courts do not have the authority to dictate whether a sentence is to be served in prison or in home confinement.  Additionally, though U.S.S.G. § 5C1.1(d)(2) provides that if the applicable guideline range is in Zone C of the Sentencing Table, the minimum term may be satisfied by a sentence of imprisonment that includes a term of supervised release with a condition that substitutes home detention, provided that at least one-half of the minimum term is satisfied by imprisonment, Ms. Witt's guideline range of 28 to 32 months placed her in Zone D, not Zone C.        

King: Collateral-Attack Waiver Precludes 2255 Motion Based on Davis

In King v. United States, No. 20-14100 (July 28, 2022) (Grant, Luck, Anderson), the Court affirmed the denial of a 2255 motion based on Davis.

In his plea agreement, the defendant agreed not to collaterally attack his conviction or sentence in a 2255 motion.  After Davis, the defendant brought a 2255 motion, arguing that his 924(c) conviction, which was predicated on conspiracy, was no longer a valid crime.  The Eleventh Circuit held that, even though Davis subsequently announced a new retroactive rule of constitutional law, the defendant’s waiver remained valid under contract principles.  And while the Court had previously recognized limited exceptions to such waivers, including in the case of a jurisdictional defect, the defendant’s Davis claim did not fit any of those exceptions.  Specifically, the Court held that the claim did not involve a sentence exceeding the statutory maximum, because the maximum must be understood based on the law in effect at the time the waiver was signed by the parties.  The defendant bore the risk that there would be a favorable change in the law, and “the government’s wager has paid off” in that regard.

Judge Anderson concurred.  He agreed that the Davis claim did not satisfy the exception for sentences exceeding the statutory maximum.  However, he wrote separately to address the movant’s reliance on an exception for a miscarriage-of-justice/actual innocence.  A footnote in the majority noted that the Court had never adopted such an exception.  And Judge Anderson opined that this case would not satisfy any such exception because the defendant admitted to his involvement in an armed bank robbery at the plea, and that dismissed count could have formed the basis of the 924(c) offense.

Watkins: Sufficient Evidence Supported Convictions for Defrauding Investors

In United States v. Watkins, No. 19-12951 (July 15, 202) (Newsom, Tjoflat, Ed Carnes), the Court affirmed the defendants’ fraud convictions.

The defendants solicited millions of dollars in investments from wealthy and famous people, including Sir Charles Barkley, by misleading them about their ownership interest in the investment company, that the funds would be used for business (rather than personal) purposes, and that other high-profile people were involved in the company.  The defendants also directed a friend to request a loan from a bank where the defendants were already maxed out, and to conceal that the loan was for the defendants.

On appeal, the Eleventh Circuit held that the evidence was sufficient to support the defendants’ convictions.  As for wire fraud, the evidence was sufficient to show an intent to defraud because the misrepresentations affected the nature of the bargain and sought to obtain money to which the defendants were not entitled.  As for bank fraud, the evidence was sufficient because concealing the true recipient of the loan affected the nature of the bargain with the bank.

The Eleventh Circuit held that the district court did not abuse its discretion by denying the defendants’ proposed jury instruction on the “intent to harm” element of wire/bank fraud.  Using the pattern instruction, the court properly instructed the jury that it could not have convicted without finding that the misrepresentations were made with an intent to cause loss or injury to the people from whom he solicited money, and thus to obtain money to which he was not entitled.  The court also properly instructed the jury on the theory of defense.

Finally, the Eleventh Circuit held that the district court did not abuse its discretion by excluding defense evidence about the value of the investment companies.  That evidence would not have affected the government’s theory of the case.  For example, showing that the companies were successful would have done nothing to relieve the defendant from liability for deceiving investors about how their money would be used.

Lewis: No Privity Between State/Federal Prosecutors for Collateral Estoppel, and Upholding Exclusion of Moral Juror for Cause

In United States v. Lewis, No. 20-12997 (July 14, 2022) (Grant, Luck, Hull), the Court affirmed the defendant’s drug convictions.

First, the Court upheld the denial of a motion to suppress.  The argued that collateral estoppel prevented the federal government from re-litigating the legality of the traffic stop, which was already decided in state court.  The Court assumed, without deciding, that collateral estoppel applied to successive criminal prosecutions by different sovereigns, but held that it would not apply here because the defendant failed to establish privity between the state and federal authorities.  There was no evidence that the state was acting as a tool of, or were controlled by, federal prosecutors.

Second, the Court rejected the defendant’s arguments pertaining to jury selection.  It found no abuse of discretion in dismissing a juror for cause where the juror could not sit in judgment due to moral beliefs.  Unlike the religious juror in the en banc decision in Brown, the juror here never confirmed the ability to follow the law and the court’s instructions, and, unlike in Brown, the juror here was not already seated.  In addition, the Court found no clear error in the district court’s finding of discriminatory intent under Batson as to one of the defendant’s peremptory strikes, and that decision was harmless in any event because the defendant did not claim that the juror was unqualified to sit and he did not renew his challenge when given the chance.

Third, the Court upheld the district court’s exclusion of evidence about why the state court proceeding against the defendant was terminated, including the state court’s order finding the federal government’s main witness to be not credible.  Although the district court excluded the evidence as irrelevant, the Eleventh Circuit did not decide whether it was because it was harmless, as there was other overwhelming evidence of guilt.  For the same reason, the Court found no plain error with respect to the defendant’s argument that the exclusion deprived him of his right to present a complete defense.

Butler: Affirming Upward Variance Life Sentence in Enticement/Production Case

In United States v. Butler, No. 21-10659 (Wilson, Branch, Tjoflat), the Court affirmed the defendant’s life sentence for enticing a minor to engage in sexual activity and for production of child pornography.

Although it was an upward variance from the guideline range of 292-365 months, the Court held that the life sentence was substantively reasonable.  The district court did not abuse its discretion by failing to consider his age, amenability to treatment, acceptance of responsibility, or the circumstances of his prior offenses.  The district court did not abuse its discretion by giving significant weight to any irrelevant sentencing factors.  And the district court did not unreasonably weigh the sentencing factors.  Instead, the court reasonably concluded that the guideline range did not adequately reflect his criminal history or the need to protect the public, and that finding was within the court’s discretion.

Hesser: Reversing Denial of 2255 Motion Based on Counsel's Failure to Seek Rule 29 Judgment of Acquittal

In Hesser v. United States, No. 19-13297 (July 13, 2022) (Lagoa, Brasher, Tjoflat), the Court reversed the partial denial of a federal prisoner’s 2255 motion.

The movant alleged that defense counsel was ineffective for failing to move for a Rule 29 judgment of acquittal after the government’s case in chief.  The district court granted the 2255 motion for three counts of tax fraud—the Eleventh Circuit on direct appeal had already held that the evidence was insufficient and affirmed based on the deferential standard of review.  But the district court denied the 2255 motion with respect to a conviction for attempted tax evasion.  On appeal, the Eleventh Circuit held that this was error because, had counsel filed a Rule 29 motion after the government’s case, the district court would have been required to grant it.

The Court explained that the government’s evidence was insufficient because it did not establish an affirmative act constituting attempted tax evasion.  Although the defendant hid gold in his house with the purpose of hiding it from the IRS, the government failed to prove that he actually owned the gold and that it was therefore subject to a tax levied on him.  If the gold was not subject to a tax, then attempting to conceal it from the IRS was not a crime, even if the defendant made a mistake of law (not fact) by believing that it was.  In addition, while the defendant suspiciously quitclaimed his house to a newly created trust the government never proved how doing that would have affected his tax liability; there was no tax lien on his house at the time he transferred the house to a trust.

Stapleton: Affirming Alien-Smuggling Convictions Over Various Challenges

In United States v. Stapleton, No. 19-12708 (Newsom, Marcus, Covington) (July 12, 2022), the Court affirmed the defendant’s alien smuggling convictions.

First, the Court rejected the defendant’s argument that the government’s four-year delay in extraditing him violated his constitutional right to a speedy trial.  The district court did not clearly err in finding that the government acted reasonably and diligently (rather than negligently or in bad faith) given the onerous requirements for extradition from the Bahamas and Jamaica, and that the 33 aliens involved in the case had scattered.  And the government acted once it learned that the defendant planned to travel to Germany, a country with less demanding extradition requirements.  Because the reason for delay did not weigh heavily against the defendant, and he did not argue actual prejudice, his claim failed.

Second, the Court held that the indictment was neither multiplicitous nor insufficiently specific.  While two counts charged a violation of the same statute, they charged two separate alien-smuggling conspiracies rather than one.  And while it charged three immigration-related offenses for the same conduct, they each required proof of different elements, thus satisfying the Blockburger test.  Finally, the indictment was not required to specifically identify the alleged co-conspirators.  And it did not need to specify a principal whom he aided and abetted because he was charged with committing the substantive offenses himself.

Third, the district court did not plainly erred by admitting evidence of the defendant’s abuse of migrant women and of an uncharged alien-smuggling conspiracy.  The former was probative of his intent to smuggle migrants into the United States, which he placed at issue.  And the latter was probative of his modus operandi, and also to refute his trial defense that he did not intend to commit any crimes.

Fourth, the evidence was sufficient to convict him of knowingly aiding the entry of an inadmissible alien who had been convicted of an aggravated felony.  The evidence was sufficient for a jury to conclude that the alien was in fact the same person who had been convicted of an aggravated felony.

Fifth, the district court did not clearly err in imposing two sentencing enhancements.  As to an enhancement for inflicting serious bodily injury, the court was entitled to credit the testimony of the victim, even though she had illegally entered the country and had a pending petition to remain.  As to an enhancement for possession of a firearm in relation to his offenses, that conduct was part of the “relevant conduct,” even though it occurred during an uncharged operation, because it was part of the same common scheme or plan sharing a similar modus operandi.

Cohen: Unauthorized, Unlicensed Driver Had Fourth Amendment Standing, But Inventory Search Complied with Impound Procedures

In United States v. Cohen, No. 21-10741 (Wilson, Branch, Tjoflat) (July 6, 2022), the Court affirmed the denial of a motion to suppress.

The Court held that Cohen had Fourth Amendment to standing to challenge the search of the rental car he was driving, even though he was not an authorized driver of the rental car and had a suspended license.  In Byrd, the Supreme Court held that standing is not defeated merely because the driver was not listed on the rental agreement.  The Eleventh Circuit rejected the reasoning of the Second Circuit, and agreed with the Eighth Circuit, that being an unlicensed driver does not defeat a reasonable expectation of privacy because it is not comparable to wrongful presence in the car.  And the Court emphasized that the Cohen did not interfere with the authorized renter’s valid possessory interest in the car because had the renter’s permission to use the car.  However, the Court ultimately held that the inventory search of the car complied with the city’s impoundment procedures, and the Court therefore upheld the denial of the motion to suppress.

Riolo: Affirming Denial of § 2255 Motion Raising IAC

In Riolo v. United States, No. 20-12206 (June 29, 2022) (Jordan, Jill Pryor, Marcus), the Court affirmed the denial of Mr. Riolo's 28 U.S.C. § 2255 motion to vacate his 293-month prison sentence and convictions.    

Mr. Riolo argued that his trial counsel provided ineffective assistance of counsel because she told him that if he pleaded guilty to five counts of mail fraud, he would serve no more than 10 years in prison because of a deal she had worked out with the government.  His trial counsel also advised him that his sentencing range under the Guidelines was 97-121 months' imprisonment because he had an offense level of 30 and a criminal history category of I.  He argued that he pleaded guilty based upon those representations when he otherwise would have proceeded to trial.  

After an evidentiary hearing, the district court found that the trial counsel never represented to Mr. Riolo that she had a deal with the government about his guideline range and that she had properly advised him that the district court would ultimately determine his guideline range for itself.  On appeal, Mr. Riolo argued that the district court's factual findings were clearly erroneous, and that, even putting aside the disputed facts, the fact that his trial counsel underestimated his guideline range by more than 100 months alone constituted ineffective assistance of counsel.  

The Court found no clear error in the district court's findings, and under those facts, no ineffective assistance of counsel.  The Court also reasoned that though trial counsel's estimated guideline range was "far off the mark--by more than 100 months," "experienced attorneys make mistakes."  That is, ineffective assistance of counsel claims are fact-bound, and here, the factual record demonstrated that trial counsel's miscalculation was not the product of deficient performance.  The Court chose not to address the Fifth Circuit's opinion in United States v. Herrera, wherein the Fifth Circuit remanded for an evidentiary hearing, noting that a movant may have a potential ineffective assistance of counsel claim where an attorney gives incorrect advice regarding exposure under the Guidelines.   

Judge Jordan concurred in the Court's opinion, but wrote separately to point out that a majority of the Court's sister circuits had held that significant errors in advice about sentencing exposure can constitute deficient performance.  He noted that while the Court had avoided the issue here, it would have to confront the issue at some point.  

Jackson: Court Must Apply Version of CSA Schedules in Place When Defendant Committed Instant Federal Offense; and Fla. Stat. 893.13 Cocaine Conviction Overbroad Because of Inclusion of Ioflupane

In United States v. Jackson, No. 21-13963 (June 10, 2022) (Rosenbaum, Jill Pryor, Ed Carnes), the Court vacated Mr. Jackson's ACCA-enhanced sentence and remanded for resentencing without the ACCA sentence enhancement.  

In this appeal, the Court considered which version of the Controlled Substance Act Schedules incorporated into ACCA’s definition of “serious drug offense” applies when a defendant is convicted of being a felon in possession of a firearm: the version in effect at the time of the defendant’s federal firearm-possession violation (for which he is being sentenced), or the ones in effect when he was convicted of his predicate state crimes that we are evaluating to see whether they satisfy ACCA’s definition of “serious drug offense.”

The Court held that due-process fair-notice considerations require the application of the version of the Controlled Substance Act Schedules in place when the defendant committed the federal firearm-possession offense for which he is being sentenced.  

With that in mind, the Court found that Mr. Jackson's 1998 and 2004 cocaine-related convictions under Fla. Stat. § 893.13 did not qualify as "serious drug offense[s]" because they encompassed the sale of, or possession with intent to distribute, ioflupane, which was not a "controlled substance" for purposes of the "serious drug offense" definition in the ACCA at the time of Mr. Jackson's federal firearms offense.  Ioflupane was removed from the federal drug Schedules in September 2015 because of its value in potentially diagnosing Parkinson's Disease.  Florida, however, did not remove ioflupane from its drug schedules until July 2017.  

The Court further noted that prior precedents in Smith (2014), Smith (2020), Shular, and McNeill did not preclude relief here.  It noted that the question of which version of the Controlled Substance Act's drug Schedules governed under the ACCA's definition of "serious drug offense" was "not even a twinkle in [the Court's] eyes or in those of the Supreme Court in the Smith cases and in Shular."  That is, where a court has never addressed an issue, and had at most assumed the issue, the court is free to address the issue on the merits in a later case presenting it.  As for McNeill, it only answers the backward-looking question of what the defendant's previous state conviction was.  It does not the question presented here.  

  

Stines: Lower Base Offense Level for Exporting Weapons Does Not Apply Where There Are More Than Two Weapons Parts or Components

In United States v. Stines, No. 20-11035 (May 31, 2022) (Wilson, Luck, Lagoa), the Court affirmed the defendant’s sentence for unlawfully exporting weapons.

Ordinarily, under U.S.S.G. 2M5.2(a), the unlawful exportation of weapons carries a base offense level of 26, but there is an exception carrying a base offense level of 14 where the offense involved only non-fully automatic small arms, and the number of weapons did not exceed two.  In this case, the defendant exported 23 weapons parts that could be converted into only two fully assembled weapons.  The Court agreed that the exception could apply to weapons parts, not just fully assembled weapons.  However, the Court held that the exception did not apply in this case because the number of parts could service more than two weapons.  Although this reading would mean that exporting three triggers alone would produce a higher base offense level than exporting two fully assembled firearms, that did not create an absurd result.  The Court also held that it lacked jurisdiction to consider the district court’s refusal to grant a downward departure under the Guidelines.

Judge Luck concurred, opining that the exception did not apply to gun parts because those were not “small arms.”  Judge Lagoa authored a concurrence disagreeing on that point.

Gardner: "Maximum Term of Imprisonment" for ACCA "Serious Drug Offense" is Defined by Statutory Maximum, not High end of Presumptive Guideline Range

In United States v. Gardner, No. 20-13645 (May 27, 2022) (Newsom, Tjoflat, Hull), the Court affirmed the defendant’s ACCA sentence.

The district court applied the ACCA based prior Alabama drug convictions.  The defendant argued that his convictions did not qualify as “serious drug offenses” because they did not have a “maximum term of imprisonment” of ten years or more.  The Court held that the “maximum term of imprisonment” was determined by the statutory maximum under state law.  The Court rejected the defendant’s argument that it was instead determined by the high-end of the state’s presumptive guideline range.

Jimenez-Shilon: 9225(g)(5)(A), prohibiting illegal aliens from possessing guns, does not violate Second Amendment

In United States v. Jimenez-Shilon, No. 20-13139 (May 23, 2022) (Newsom, Branch, Brasher), the Court held that 18 U.S.C. 922(g)(5)(A)—which prohibits illegal aliens from possessing firearms—does not violate the Second Amendment.

The Court held that illegal aliens do not have Second Amendment rights.  The Court assumed, for the sake of argument, that the defendant here was among the “people” referenced in the Constitution.  Nonetheless, after conducting an extensive historical analysis, the Court concluded that illegal aliens were not afforded the right to bear arms in England or colonial America.  In so concluding, the Court joined seven circuits to address the issue, which all reached the same conclusion.  Accordingly, the Court held that 922(g)(5)(A) does not violate the Second Amendment.

Judge Newsom authored a separate 10-page concurrence about his views more generally on how to conduct a Second Amendment analysis in future cases.

Coglianese: Upholding Supervised Release Restriction on Computers and Electronic Data Storage Medium in Child Sex Case

In United States v. Coglianese, No. 20-12074 (May 17, 2022) (William Pryor, Jordan, Brown (N.D. Ga.)), the Court affirmed the defendant’s low-end 168-month for child sex crimes.

After upholding the procedural and substantive reasonableness of the sentence, the court upheld a special condition of supervision restricting the defendant from accessing computers and the internet, and from possessing any electronic data storage medium, without prior approval by probation.  The Court had uniformly upheld computer restrictions in sex offender cases where, as here, the defendant could seek permission from probation, including in decisions issued after the advent of smartphones.  The defendant argued that the restriction on an “electronic data storage medium” was overbroad and included everyday items like a modern television and alarm system, but the Court concluded that the ordinary meaning of the phrase referred to a flash drive and other devices that can store and transmit information for processing by a computer.  It was therefore tailored to the defendant’s offense and neither overbroad nor an abuse of discretion.

Rodriguez: Affirming Sentence for Trafficking 200kg of Meth

In United States v. Rodriguez, No. 20-14681 (May 12, 2022) (Jill Pryor, Grant, Marcus), the Court affirmed the defendant’s 135-month sentence for his role in a conspiracy trafficking methamphetamine.

First, the Court upheld the district court’s decision to attribute 200 kilograms of meth to Rodriguez after considering the scope of the enterprise, his particular role, and the quantity of drugs that would be reasonably foreseeable in light of his role.  This case involved a large importation/distribution enterprise driving drugs across the Mexico border for distribution, and then wiring money back to the cartels in Mexico.  Rodriguez acted jointly with his co-conspirators and participated in the conspiracy in six different ways, five of which included directly transporting drugs.  And, even though he played a “minor role” in the conspiracy, that did not preclude attributing the full quantity of drugs to him where that quantity was reasonably foreseeable.

Second, the Court upheld an enhancement for possession of a firearm because his co-conspirator had stored a firearm at the stash house, and that was reasonably foreseeable, as Rodriguez effectively admitted at sentencing.

Third, the Court lacked jurisdiction to consider the argument that the district court erroneously failed to grant a downward departure under the Guidelines.  Appellate review is available only where the district court incorrectly believed that it lacked authority to grant the departure, and nothing in the record suggested that the district court harbored such a misunderstanding.

Finally, the Court concluded that the low-end sentence was not substantively unreasonable.  Nor did the district court abuse its discretion in declining to impose a downward variance.

Moon: Sixth Amendment Structural Right to a Public Trial is Waivable

In United States v. Moon, No. 20-13822 (May 10, 2022) (Jill Pryor, Branch, Hull), the Court affirmed the defendant’s child pornography convictions.

First, the Court upheld the denial of a motion to suppress videotapes found during the execution of an unrelated search warrant on the defendant’s medical office.  The Court concluded that the search was within the scope of the warrant because it referred to “videotapes” and “tapes.”  Thus, the officer was entitled to briefly examine the tapes, as that was the only way to determine their relevance to the crime.  The Court rejected the defendant’s argument that the videotapes were too obsolete to contain criminal evidence, as the office contained a VCR as well as a hidden surveillance camera.

Second, the Court upheld the district court’s closures of the courtroom to display sensitive evidence.  The Court found that the parties entered into a pre-trial agreement to do so.  The Court joined other circuits in holding that the structural right to a public trial is waivable.  And the Court concluded that the defendant waived that right by entering the pre-trial agreement, affirmatively consenting to the closure at various points early in the trial, and subsequently failing to object to any later closures that purportedly exceeded the scope of the agreement.

Finally, the Court briefly found no abuse of discretion in the district court’s: denial of a motion for a Franks hearing; denial of a motion for recusal; and failure to give several requested instruction on the definition of “lascivious exhibition.”

Seabrooks: Reversing Denial of 2255 Motion Based on Rehaif

In Seabrooks v. United States, No. 20-13459 (May 6, 2022) (Wilson, Rosenbaum, Conway (MD Fla.)) (per curiam), the Court reversed the denial of a 2255 motion based on Rehaif, vacated the felon-in-possession conviction, and remanded for further proceedings.

The Court issued three holdings.  First, it agreed with the parties that Rehaif announced a  new “substantive” rule, and so it applied retroactively in initial 2255 motions.  Second, it held that Seabrooks’ Rehaif claim was not “procedurally barred” by his failure to raise that claim on direct appeal, since Rehaif was an intervening change in law.  And the government waived any argument about “procedural default” by failing to raise that defense in the district court.  Third, the Court held that the district court’s aiding and abetting instruction, which was erroneous in light of Rosemond and Rehaif, was not harmless because there was more than a reasonable probability that the jury relied on that theory to convict.