Hughes: Rule 11(c) defendant not eligible for sentence reduction

In U.S. v. Hughes, No. 15-15246 (Feb. 27, 2017), the Court held that a defendant who pled guilty under a Rule 11(c)(1)(C) plea, which binds the district court to impose the sentence recommended by the parties, was not subsequently eligible for a sentence reduction based on an Amendment to the Sentencing Guidelines and 18 U.S.C. § 3582(c)(2). The Court noted that the Supreme Court addressed this issue in Freeman (2011), a “plurality” decision in which Justice Sotomayor’s concurrence provided the “less-far-reaching” ground, and therefore represented Freeman’s holding. The Court noted the Circuit split on the holding in Freeman, and sided with the majority view. Under this view, a Rule 11(c) defendant is only eligible for a § 3582(c)(2) sentence reduction if the sentencing judge’s decision to accept the recommended sentence is based on the guidelines (not, as the plurality reasoned, because every sentence is based on the guidelines). Here, Hughes’ plea agreement did not make clear that a sentencing range formed the basis for his sentence. Therefore, Hughes was not sentenced “based on” the guidelines range, and he is not eligible for a sentence modification.

Phillips: Granting 2255 relief where false statement by police officer tainted conviction

In Phillips v. U.S., No. 14-11960 (Feb. 23, 2017), the Court, reversing the denial of § 2255 relief, agreed with the defendant (and the government’s concession) that a prior conviction for drug trafficking was tainted by the false testimony at trial of a West Palm Beach police officer, who was also under criminal investigation for conduct that occurred at the time of his investigation of the defendant. The Court concluded that the officer’s false testimony was “material” to the government’s case, and thus there was “grave doubt” about whether it influenced the jury’s verdict. The Court, however, affirmed the district court’s ruling on two other counts that despite the warrant application’s reliance on false statements by the police officer, there was other information in the warrant that supported probable cause. There was sufficient evidence, apart from the false testimony, to justify the search warrant that led police to the discovery of ammunition in Phillips’ residence.

Vargas: Duration of traffic stop not unreasonable

In U.S. v. Vargas, No. 16-14714 (Feb. 16, 2017), the Court affirmed the denial of a motion to suppress evidence on Fourth Amendment grounds, rejecting the argument that the police detained the defendant for an unreasonable time after a traffic stop. The Court pointed out that neither the driver nor the passenger of the vehicle that had been pulled over for a traffic infraction had a driver’s license. The police therefore had a duty to continue to detain them, and prevent them from driving off.

Votrobek: Georgia and Florida conspiracies were separate

In U.S. v. Votrobek, No. 14-12790 (Feb. 13, 2017), the Court affirmed the convictions and sentences of defendants convicted of conspiring to distribute drugs and money laundering. The Court rejected the argument that Double Jeopardy barred prosecution for a Georgia conspiracy on the ground that it was the same conspiracy for which a defendant was acquitted after a jury trial in Florida. The Court concluded that the defendant committed two separate conspiracies, noting that the conspiracies did not overlap in time, and involved different co-conspirators. Though the offenses were almost identical, this factor is least important to the Double Jeopardy analysis. Moreover, the overt acts were different – and the conspiracies took place in two separate States: Florida and Georgia. The Court also rejected a challenged failure to hold a Franks hearing to determine whether the probable cause affidavit supporting a warrant lacked a basis. The Court cited the information detailed in the affidavit, and found that it supported the need for a wiretap. The Court further rejected the argument that the district court should have given an “entrapment by estoppel” defense jury instruction. Entrapment by estoppel occurs when a defendant reasonably relies on an official’s approval of the conduct at issue. Here, at no point did an official communicate to a defendant that his conduct was in compliance with the law.

Scheels: Enhancement for sadistic conduct

In U.S. v. Scheels, No. 15-15405 (Jan. 31, 2017), the Court rejected the argument that the four level enhancement of U.S.S.G. § 2G2.1(b)(4) for an offense involving material that portrays sadistic or masochistic conduct should not apply when the sadistic or masochistic conduct in the pornography was directed at the defendant, not at the child victim. The Court pointed out that the Guideline covered conduct that “involved” sadistic or masochistic conduct, not that the conduct be directed at the victim. The Court noted past cases involving conduct directed at the victim, but found that these cases merely hold that conduct directed toward a child is sufficient to warrant the enhancement, not that it is necessary. The Court affirmed the 600-month sentence.

Golden: Turner remains binding precedent

In United States v. Golden, No. 15-15624 (Jan. 24, 2017), the Court held that it was bound by its precedent in Turner v. Warden Coleman FCI to hold that a Florida conviction for aggravated assault, in violation of Fla. Stat. § 784.021, constitutes a crime of violence for Guideline enhancement purposes. [Jill Pryor, J, concurring, urged the Court to reconsider the viability of Turner en banc. She argued that Turner conflicts with other Circuit precedent, and with the analytical approach of subsequent Supreme Court cases.

Stein: Signalife investor loss amount vacated

In United States v. Stein, No. 14-15621 (Jan. 18, 2017), the Court affirmed all fraud convictions arising out of a scheme to inflate the stock price of Signalife, but vacated his conviction and remanded for resentencing. The Court rejected Stein’s Brady claim, finding that the evidence at issue was exculpatory, and was available to him with reasonable diligence. The Court also rejected Stein’s Giglio claim, finding that the prosecution did not speak falsely, and its statements did not involve testimony that would have materially affected the judgment. Turning to the sentence, the Court noted that the district court calculated the loss amount based on a finding that all 2, 415 shareholders who owned shares of stock of the company whose value Stein inflated suffered a loss during the period the stock was artificially inflated. The Court noted that there was no direct evidence, and insufficient circumstantial evidence, that 2,415 investors relied on the fraudulent information Stein disseminated. The Court noted that on remand, the district court could try again to prove the losses of the Signalife investors, or rely on the defendant’s actual gain, instead of the actual loss, as a measure of the loss for Guideline purposes. The Court also agreed with Stein that, in calculating loss, the district court erroneously failed to account for “intervening events” that may have affected the stock price, specifically, the short-selling of over 22 million shares of Signalife and the across-the-board decline of the market in 2008. The Court instructed the district court to determine whether these intervening events affected the price of Signalife, and, if so, whether Stein reasonably foresaw this.

Garcia-Martinez: Florida Second Degree Burglary is not a Violent Felony

In U.S. v. Garcia-Martinez, No. 14-15725 (Jan. 11, 2017), the Court held that a prior conviction for second-degree burglary of a dwelling in violation of Fla. Stat. § 810.02(3) does not count as a violent felong for purposes of USSG 2L1.2(b)(1)(A)(ii). Noting a Circuit conflict on the meaning of a “dwelling,” and siding with the majority view, the Court held that a generic dwelling is a space intended for use as “a human habitation.” Florida, however, includes the “curtilage” of a space within its definition of a “dwelling.” This takes Florida’s definition outside the generic definition. Further, the dwelling and the curtilage are not alternative elements of a burglary, just different means of committing the offense. Thus, the locational element is indivisible. The Court therefore vacated the sentence and remanded for resentencing.

Rushin: Defense precluded from asking cooperating witnesses about specific future sentences

In U.S. v. Rushin, No. 14-15622 (Dec. 21, 2016), the Court affirmed the convictions and sentences of prison guards charged with abusing prisoners and covering up the incidents. The Court declined to address whether the district court erroneously limited one defendant’s counsel CJA voucher, finding that no appellate jurisdiction existed because the notice of appeal did not indicate that counsel intended to participate as an appellant. The Court rejected the defendants’ challenge to the district court’s ruling that during cross-examination of the government’s cooperating witnesses who had pled guilty, the defense could not inquire regarding the specific sentences these cooperating witnesses might have received, absent their cooperation. The Court noted that the defendants were permitted to ask whether the cooperating witnesses would have faced a more severe penalty, or expected a lesser sentence. However, “the precise number of years the cooperating witnesses may have faced provides little, if any, value above those questions defense counsel were permitted to ask.” Moreover, “due to the fact that the sentence range applicable to these witnesses would reveal the sentence range for defendants, the proposed additional examination could invite jury nullification. The risk of jury nullification is accentuated by the fact that defendants were guards and the victims prisoners.” The Court also rejected the defendants’ claim that the district court unduly limited their defense when it precluded them from introducing evidence of “unrelated inmate violence.” The Court explained that unrelated inmate violence did not make the defendants’ assaults more or less likely or more or less justified. Moreover, jury nullification appeared to be the reason for introducing this evidence – an improper basis. Turning to sentencing, the Court rejected the argument that the district court unduly relied on the conduct underlying the civil rights violations, for which the defendants were acquitted, to punish them for obstruction of justice. A district court may rely on acquitted conduct at sentencing. [Jordan, J., concurring, stated that in certain cases it could be a Confrontation Clause error to preclude the defense from asking a cooperating witness about the mandatory minimum sentence he would otherwise be facing.]

Green: Harmless Rule 404b errors

In U.S. v. Green, No. 14-12830 (Nov. 30, 2016), the Court affirmed the conviction and sentence of 262 months for a defendant charged with being a felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Court rejected Green’s challenge to the sufficiency of the evidence: Green was hiding in the same room in which the firearm was discovered, had been living at this residence, and had admitted to the arresting officer that the firearm was his. The Court also rejected the argument that Green’s admission was uncorroborated and therefore should not have been considered, finding that there was circumstantial evidence of constructive possession. The Court agreed with Green that the district court should have redacted the indictment’s reference to prior “crimes” in the plural, given that Green had stipulated to having a single prior conviction. The Court recognized that communicating to the jury that a defendant could have “dozens of convictions” increases the risk of unfair prejudice. However, the error was harmless in light of the significant circumstantial evidence. The ammunition possession conviction that the government relied on for purposes of Rule 404(b) had been entered after Green pled nolo contendere to the charge. Citing Federal Rule of Evidence 803(22), which precludes the use of a nolo plea to prove the truth the matter asserted in a judgment of conviction, the Court concluded that the admission of Green’s prior conviction was insufficient to prove that Green actually committed the prior act at issue. However, again, the error was harmless in light of the “ample” evidence “independent of the Rule 404(b) conviction,” supporting guilt. Moreover, the nolo conviction was “not emphasized during trial or closing argument,” as the district court gave a cautionary Rule 404(b) instruction, and the prosecutor in closing told the jury that the 404(b) conviction was only admitted for the “very limited purpose” of showing whether Green had the “intent” to possess the items at issue. Turning to the sentence, the Court found no error in sentencing Green under the Armed Career Criminal Act (“ACCA”), based on prior Florida battery convictions. The Court noted that the Supreme Court left open the possibility of relying on Shepard documents to determine whether a prior battery conviction qualified as a “crime of violence.” Here, these documents (the agreed factual basis for Green’s nolo plea) indicated that Green “struck” another against his will. Specifically, that the victim said that Green “hit him in the face.”

Cobb: Affirming 324-month sentence for fraudulent tax return filings

In U.S. v. Cobb, No. 15-12817 (Nov. 30, 2016), the Court affirmed the 324-month sentence of a defendant convicted of mail and wire fraud conspiracy, aggravated identity theft, and firearm possession, in a scheme involving using stolen identities to file hundreds of fraudulent tax returns. The Court rejected Cobb’s challenge to the $2.5 million loss amount to support an 18-level sentence enhancement, and the determination that the offense involved more than 250 victims, finding that the government presented sufficient evidence to support these calculations. The Court also rejected the challenge to the $1.8 million restitution award, finding that this was the amount of money the Internal Revenue Service paid out. The Court found that Cobb waived a challenge to the sentence enhancement for use of an unauthorized access device, and a challenge to the finding that a prior serious drug offense qualified him for an enhanced sentence, finding that he withdrew his objections to these enhancements at the sentencing hearing.

Ammar: Speedy Trial Act violation

In U.S. v. Ammar, No. 13-12044 (Nov. 29, 2016), the Court vacated a defendant’s conviction because of a violation of the Speedy Trial Act, and remanded for the district court to consider whether the dismissal of the indictment should be with, or without, prejudice. On September 1, 2011, Ammar was indicted, with other defendants, in a case in which the government was contemplating seeking the death penalty. This indictment started the 70-day Speedy Trial Act deadline. However, over Ammar’s repeated objections, the district court set the case for trial one year later. The district court rejected Ammar’s motion to dismiss for a Speedy Trial Act violation on the ground that the trial date was “by agreement of everybody.” This finding was factually inaccurate, as Ammar had repeatedly objected to the length of the delay. Further, an agreement of the parties does not satisfy the required “ends of justice” finding to justify tolling the Act’s 70-day deadline. The Court rejected the argument that a district court need not utter “magic words” to toll the deadline, finding that, even if this were possible, here the district court explicitly declined to make ends-of-justice findings, relying instead, erroneously, on the “agreement of everybody.” The Court left it to the district court to apply the statutory factors and make the determination whether the indictment should be dismissed with or without prejudice.

Gundy: Georgia burglary qualifies as generic burglary

In U.S v. Gundy, No. 14-12113 (Nov. 23, 2016), the Court (2-1) held that a Georgia burglary conviction qualified as a “crime of violence” for purposes of the Armed Career Criminal Act (ACCA). The Georgia statute defined burglary as unlawful entry “within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another . . .” The Court recognized that this definition swept more broadly than generic burglary, because it encompassed not only entry into buildings, but also into vehicles. However, based on Georgia caselaw, which requires an indictment to specify the location of an alleged burglary, the Court concluded that each of the locations were “locational elements,” not merely alternative means of committing burglary. As a result, the statute was “divisible.” Each location was a separate crime. Thus, the Court could examine the record of Gundy’s prior burglaries to determine whether Gundy’s prior burglaries qualified as generic burglaries. Because Gundy’s prior burglaries involved a “dwelling house” or a “business house,” they all qualified as generic burglaries for ACCA purposes. [Jill Pryor, J., dissenting, interpreted Georgia’s standard jury instructions’ reference to “building or dwelling” as referring to a single element, not as identifying separate crimes, and noted that, in burglary trials, Georgia juries are not required to agree on the type of dwelling at issue].

Error in verdict form merely clerical

In U.S. v. Davis, No. 15-10927 (Nov. 22, 2016), the Court rejected the argument that the trial court erred when it amended the judgments to change a count of conviction from “Robbery” in violation of 18 U.S.C. § 924(c), to possession of a firearm during a crime of violence in violation of § 924(c). The Court noted that the error in the initial judgment arose out of a mistake in the jury’s verdict form. However, the indictment, the parties’ closing arguments, the jury instructions, and the jury’s questions during deliberations indicate that it understood that the charge in this count was not “robbery,” but a § 924(c) firearm violation. Moreover, the overwhelming evidence in the case supported this conviction. The jury “inescapably” found that the defendants “used a gun.” The error in the verdict form was merely clerical.

Esprit: Florida burglary is not an ACCA "crime of violence"

In U.S. v. Esprit, No 14-13066 (Nov. 21, 2016), the Court held that, post-Johnson, Florida burglary in violation of Fla. Stat. § 810.02(1)(b)(1) is not a “crime of violence” for purposes of a sentence enhancement under the Armed Career Crimnal Act (ACCA). The Court determined that Fla. Stat. § 810.02(1)(b)(1) is an “indivisible” statute, because a jury is not required in its verdict to identify the means that were used to commit the burglary, whether by entering a building or entering a building’s “curtilage.” Unlawful entry of a building or its curtilage are possible alternative means of committing the offense of burglary, not alternative elements of the burglary offense. As a result, the “modified categorical approach,” which authorizes examining the facts underlying a conviction, does not apply. Consequently, since the Supreme Court in James held that the inclusion of “curtilage” in Florida’s burglary offense takes this offense outside the definition of generic burglary, which requires entry into, or remaining in, a building or other structure, Florida burglary did not qualify as a “crime of violence.” The Court therefore vacated Esprit’s sentence and remanded to the district court with instructions that he be resentenced without the ACCA enhancement.

Leon: No plain error constructive amendment

In U.S. v. Leon, No. 15-12578 (Nov. 16, 2016), the Court, on plain error review, rejected the argument that the district court constructively amended the indictment by allowing the defendant to be convicted of attempting to cause a bank not to file required currency transaction reports (CTRs) concerning currency transactions exceeding $10,000. The Court recognized that the word “structure” is contained in 31 U.S.C. § § 5423(a)(1), not in 5324(a)(3), the statute under which Leon was charged and convicted, and that the parties used the term “structuring” during trial. But both statutes are said to refer to a “structuring” transaction. As a result, there was no “plain error.” The Court also rejected a sufficiency of the evidence challenge.

Hernandez-Alberto: Incompetency claim tolls habeas limitations period

In Hernandez-Alberto v. Sec., Fla. Dep’t of Corrections, No. 14-14092 (Nov. 4, 2016), the Court held that, for purposes of the statute of limitations governing federal habeas petitions, a properly filed Florida postconviction petition claiming incompetency remains “pending” through the final termination of the postconviction proceedings despite the state court’s having found the prisoner competent before the end of those proceedings. Because the petitioner’s application was properly filed, and remained so throughout the period of his postconviction proceeding, it tolled the deadline to file his federal habeas petition.

Fritts: 1989 Florida robbery qualifies as ACCA "crime of violence"

In U.S. v. Fritts, No. 15-15699 (Nov. 8, 2016), the Court held that a 1989 armed robbery conviction in violation of Fla. Stat. § 812.13 qualified as a “crime of violence” under the Armed Career Criminal Act (“ACCA”). The Court noted that in U.S. v. Dowd, decided in 2006, it had held that a 1974 conviction for armed robber was a violent felony under ACCA. Under Dowd, a Florida armed robbery conviction qualifies under ACCA’s elements clause. The Court rejected the argument that the Supreme Court’s decision in Curtis Johnson altered the analysis. The Court further noted that U.S. v. Lockley, decided in 2011, had held that a 1991 armed robbery qualified as a crime of violence under the elements clause of the career offender Guideline. Lockley’s reasoning also governed Fritts’ 1989 conviction. The Court rejected the argument that, under Florida law, prior to 1997, only the slightest force was sufficient to convict a defendant of Florida robbery. The Court held that, to the contrary, the robbery statute required resistance that is overcome by the physical force of the offender.

Hughes: No speedy trial violation

In U.S. v Hughes, No. 14-14181 (Nov. 4, 2016), the Court rejected the defendant’s argument that his prosecution for being a felon-in-possession of a firearm should have been dismissed on Speedy Trial Act grounds. The Court found that the oral, pre-trial motion of the government for the detention of the defendant automatically triggered an excludable period from that day until the conclusion of the hearing on that motion. As a result, no Speedy Trial Act violation occurred. The Court rejected the argument that the period of delay was caused by the defendant’s non-excludable motion for a continuance. The Court also rejected Hughes’ claim that a juror was struck in violation of Batson. The government explained that it struck the juror because he had committed a felony and violated the terms of his resultant probation; these were not facially discriminatory reasons. The Court also rejected a Crawford v. Washington challenge to the admission of statements by a 911 caller. Citing Davis v. Washington, the Court explained that the 911 caller’s statements were non-testimonial. The Court further ruled that a jury instruction that told the jury that it took account of a defendant’s false exculpatory statement did not violate Hughes’ right to remain silent, when evidence was introduced that Hughes (falsely) denied knowledge of the firearm that was found by law enforcement. A false statement by a defendant may be considered as substantive evidence of guilt.

Campo: Circumstantial evidence supports murder conviction

In U.S. v. Campo, No. 14-15541 (Nov. 1, 2016), the Court affirmed the convictions and sentences of a defendant convicted of murder, firearm trafficking, and firearm possession. The Court rejected Campo’s challenge to the sufficiency of the evidence, noting the circumstantial evidence that supported the verdict of conspiracy to murder. The evidence showed that Campo intended to kill a former gun trafficking accomplice in order to prevent him from communicating with police about the scheme. Campo bragged about the killing almost a year after the fact. Cell phone records placed Campo’s phone near the scene of the crime at the time of the murder. DNA evidence also supported the verdict. Ballistics tests matched the firearms that were used in the murder to the type of barrel Campo used on his firearm. Sufficient evidence also supported the firearm trafficking conviction. On plain error review, the Court rejected the argument that, under Fed. R. Evid. 701, the victim’s brother should not have been allowed to testify that when he called police after seeing blood in a warehouse, he told police that he thought that Campo had killed his brother. The Court noted that this opinion testimony was based on the brother’s perceptions at the time, and therefore admissible. Under Fed. R. Evid. 704, this testimony was not objectionable even though it addressed an ultimate issue in the case. On plain error review, the Court also rejected the argument that it was a Double Jeopardy violation to convict Campo of causing the death of a person while using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(j), and also of the lesser offense of using a firearm in furtherance of a crime of violence, in violation of § 924(c). The Court noted the absence of Supreme Court caselaw supporting this argument, and Circuit precedent suggesting it was without merit.