Ovalles: Johnson Does not Invalidate Residual Clause in 924(c)(3)(B)

In Ovalles v. United States, No. 17-10172 (Hull, William Pryor, Tjoflat), the Court -- without holding oral argument -- held that Johnson does not invalidate the residual clause in 18 U.S.C. 924(c)(3)(B), and that attempted carjacking satisfies the elements clause in 18 U.S.C. 924(c)(3)(A).

As for the residual clause, the Court agreed with three circuits and found that 924(c)(3)(B) was materially different, both textually and functionally, from the ACCA's residual clause.  The Court found the Seventh Circuit's contrary decision in Cardena unpersuasive.  Notably, the Court did not mention Dimaya, still pending in the Supreme Court, but on page 21 it did seek to distinguish the analysis under 16(b) as being less precise and predictable than the analysis under 924(c)(3)(B).

As for the elements clause, the Court observed that it had already held in the SOS context, in In re Smith, that carjacking qualified.  Assuming that attempted carjacking by "threat and violence" clearly qualified, the Court focused on the intimidation prong, finding that "[p]roscribed criminal conduct where the defendant must take the car by intimidation and act with intent to kill or cause serious bodily injury is unmistakably a crime of violence also."  For support, the Court notably cited two federal bank robbery cases, Kelly and In re Sams.  Applying categorical approach, the Court concluded that it could conceive of no "plausible" (as distinguished from "theoretical") ways to commit attempted carjacking without either the attempted or threatened use of force.

Spivey: Police Deception Does Not Vitiate Voluntariness of Consent

In United States v. Spivey, No. 15-15023 (June 28, 2017) (William Pryor, Martin, Boggs), the Court held that the use of deception by law enforcement officers did not vitiate the voluntariness of a defendant's consent to the warrantless entry and search of her home.

The majority said that, while deception can be relevant to voluntariness, it would not necessarily or always render consent involuntary; rather, it was just one factor to consider.  At the same time, the court also said that the subjective motivation of the officers, including their use of a pretext or even a deliberate lie, was not relevant to voluntariness, since the inquiry focused on the defendant's state of mind.  In this case, the defendant had reported prior burglaries of her home.  The burglar was arrested and informed the authorities that the home contained a credit card manufacturing plant.  Two federal fraud-task force officers then went to the home on the pretext of following up on the burglary when in fact their real purpose was to investigate the credit card fraud.  They informed her that they were there to investigate the burglaries, and they misrepresented the identity of one of the officers -- a Secret Service Agent who falsely posed as a crime-scene technician and pretended to dust the house for fingerprints.  The majority found that the defendant essentially invited the officers to her home by reporting the burglaries and made the strategic decision/gamble to assume the risk of the officers discovering contraband.

Judge Martin wrote a lengthy dissent, arguing that the consent was not voluntary under the circumstances of this case.  She concluded this way: "The Majority opinion tells police that what happened here is not a problem.  In effect, it teaches police they don't need to get a warrant so long as they can pre-plan a convincing enough ruse.  This is true even if, as here, that ruse includes skirting the limits of the officer's legal authority to investigate only certain crimes.  In doing so, I fear the Majority opinion undermines the public's trust in the police as an institution together with the central protections of the Fourth Amendment.  When I read the record in Ms. Austin's case, I don't believe this is the 'reasonable' conduct our Founders had in mind when drafting the Fourth Amendment."

Alberts: Minor-on-Minor Conduct Can Trigger 2G2.2(b)(5) Enhancement for Pattern of Sexual Abuse

In United States v. Alberts, No. 16-11065 (June 13, 2017) (Martin, Jill Pryor, Anderson), the Court affirmed a 120-month sentence for receiving and possessing child pornography.

The defendant unsuccessfully made two arguments on appeal.  First, he argued that the district court erroneously applied the enhancement in 2G2.2(b)(5) for engaging in a pattern of activity involving sexual abuse.  The defendant did not dispute the PSI facts, where he admitted to engaging in sexual activity with minor relatives, and that admission, coupled with corroborating indicators of his interest in pedophilia and incest, was sufficient to support the enhancement.  The defendant argued that, because the sexual activity occurred more than 30 years ago, it was too attenuated, but he acknowledged that this argument was foreclosed by binding circuit precedent.  And the Court rejected the defendant's argument that the enhancement does not apply to sexual activity committed by the defendant when he himself was a minor.  Joining other circuits, the Court reasoned that the application notes to 2G2.2(b)(5) referred to several statutory provisions that prohibited minor-on-minor conduct, and nothing in the Guideline was to the contrary.  The Court cautioned, however, that only conduct falling within one the statutory provisions can support an enhancement, but the defendant did not dispute that his conduct qualified as "sexual acts" within the meaning of one of those statutes.

Second, the defendant argued that his sentence was procedurally and substantively unreasonable.  As to the former, the Court, applying plain error, found that, although the district court did plainly err under Tapia by considering the need for rehabilitation at sentencing, that error did not affect the defendant's substantial rights because rehabilitation was merely an ancillary concern at sentencing.  As to the latter, the Court found that the 120-month sentence, which fell below the properly calculated guideline range, was not substantively unreasonable.

In re Hernandez: Denial of a Second SOS Application Based on Baptiste

In In re Hernandez, No. 17-11989 (May 31, 2017) (per curiam), the Court denied an application for leave to file a second or successive 2255 motion based on Johnson.  He argued that his 924(c) convictions based on Hobbs Act robbery/extortion and carjacking were invalid because those predicates no longer qualified as crimes of violence.  Mr. Hernandez had previously filed a similar application based on Johnson, which the Eleventh Circuit had denied on the ground that his Hobbs Act convictions qualified as crime of violence under the elements clause in 924(c)(3)(A).  Under the Eleventh Circuit's precedent in In re Baptiste, that earlier denial precluded his instant application.  The Court further added that Mathis did not announce a new rule of constitutional law and therefore did not provide an independent basis for his application.

Judge Martin, joined by Judge Jill Pryor, concurred in the result in a 13-page opinion.  In the concurrence, she: reiterated her disagreement with Baptiste, but recognized that it remained binding precedent; explained that it was not clear that, under the categorical approach, Hobbs Act extortion satisfies the elements clause; attempted Hobbs Act extortion is even less likely to satisfy the elements clause; and the practice of stacking 924(c) convictions, which was "prolific" in the Southern District of Florida, can lead to particularly harsh and unjust sentences.  She closed by lamenting the Court's inability to revisit the original panel ruling and thereby permit Mr. Hernandez to have the district court determine whether his sentence is illegal.

Jockisch: Jury Unanimity Not Required for Underlying State Offense in Attempted Enticement Prosecution

In United States v. Jockisch, No. 14-13577 (May 26, 2017) (Julie Carnes, Jordan, Robreno), the defendant was charged under 18 U.S.C. 2422(b) with attempting to persuade a 15-year old minor to engage in sexual activity that, if consummated, would have violated Alabama law.  The indictment listed three Alabama statutes that the defendant could have been charged with had that sexual activity occurred: second-degree rape, second degree sodomy, and second degree sexual abuse.  The Court rejected the defendant's argument that the jury was required to unanimously agree as to which Alabama offense the sexual activity would have violated.  Finding these to be means rather than elements of the offense, and distinguishing the Supreme Court's decision in Richardson, the Court held that the jury need unanimously agree only that the sexual activity being enticed would have violated at least one of the listed Alabama statutes had it been carried out.  Alternatively, the Court held that the jurors were necessarily unanimous that the defendant could have been charged with second degree sexual abuse.

Judge Jordan concurred in the judgment, disagreeing with the majority's analysis.  Agreeing with a contrary decision from the Seventh Circuit, he would have required the jury to unanimously agree on the underlying state offense.  He concurred because he believed that the error in this case was harmless.

Doyle: Prejudice Presumed for Allocution Errors Notwithstanding Low-End Sentence

In United States v. Doyle, No. 14-12181 (May 25, 2017) (Ed Carnes, Jill Pryor, Ripple), the Court addressed whether the presumption of prejudice governing allocution errors applies where the defendant is sentenced at the low-end of the advisory guideline range.  The Court held that it does.

There is a general presumption of prejudice for purposes of the third plain-error prong where a defendant is not afforded the opportunity to allocute at sentencing.  In pre-Booker cases, however, the Court had carved out an exception where the defendant received a sentence at the low end of the then-mandatory guideline range.  The reason: there was virtually no possibility that the defendant could have received a lower sentence.

In Doyle, the Court held that this exception to the presumption of prejudice did not apply to post-Booker advisory cases.  Even if the defendant is sentenced at the low end of the guideline range, there is a still a possibility that he could receive a lower sentence by virtue of a downward variance (provided he is not sentenced at the statutory minimum).  Accordingly, even though Doyle received a sentence at the low end of the guideline range, and he failed to object to the court's failure to afford him the opportunity to allocute, there was a presumption of prejudice (and the other plain-error prongs were satisfied).  The Court therefore vacated the sentence, remanding for the limited purpose of allocution and for the court to consider any post-sentencing rehabilitation in its discretion.

Shalhoub: Denial of fugitive challenge not immediately appealable

In U.S. v. Shalhoub, No. 16-10533 (April 28, 2017), the Court held that the denial of a motion for special appearance of counsel to seek the dismissal of an indictment on the ground that the defendant is a fugitive is not an immediately appealable collateral order. The Court noted that the only orders that are immediately appealable are those where the right would be destroyed if it were not vindicated before trial. The Court found that Shalhoub’s motion was not asserting “a right not to be tried,” the usual prerequisite for an immediately appealable order.” The Court also rejected Shalhoub’s request for a writ of mandamus to order the district court to rule on his motion for dismissal of the indictment. “That [Shalhoub] does not want to submit himself to the jurisdiction of the federal courts does not make the legal remedies available to challenge his indictment inadequate.”

Doran: FSU organization did not receive federal funds

In U.S. v. Doran, No. 16-10927 (April 26, 2017), the Court reversed a conviction for embezzlement in violation of 18 U.S.C. § 666, holding that the organization that was the victim of Doran’s scheme, the non-profit Student Investment Fund established by Florida State University for educational purposes, was not a recipient of federal funds, and § 666 therefore was not violated. The Court found that the non-profit organization was not an “alter ego” of FSU. [Jill Pryor, J., concurring, would have held that the government failed to put on sufficient specific proof that FSU received over $10,000 in federal funds, and that § 666 therefore was not violated].

Collins: bank gratuity offense is "offense against property"

In U.S. v. Collins, No. 15-12805 (April 26, 2017), the Court held that for restitution purposes, a defendant guilty of conspiracy to accept gratuities with the intend to influence a bank transaction has committed an “offense against property,” and is therefore subject to mandatory restitution –here, in the amount of $251,860.31. The Court stated that restitution does not apply to offenses “with only incidental property loss.” The Court held that it would not apply a “categorical approach” to determine whether an offense qualified as one “against property,” but would focus on the conduct underlying the offense of conviction. Here, Collins “sought to derive an unlawful benefit from the property at play in the bank transactions she corruptly facilitated.” Her offense therefore qualified as one “against property.”

Hastie: Personal information includes email address

In U.S. v. Hastie, No. 15-14481 (April 25, 2017), the Court held that the term “personal information” in 18 U.S.C. § 2721, which prohibits the disclosure of personal information obtained by a state department of motor vehicles, includes email addresses. The Court noted the “similarity” between email addresses and the non-exhaustive list of examples of personal information in the statute, which includes an individual’s photograph, driver identification number and address. [Jordan, J., dissenting, argued that whether an email address qualifies as “personal information” was a factual question that should have been left for the jury to decide].

Roy: Counsel's absence from courtroom is not structural error

In U.S. v. Roy, No. 12-15093 (April 26, 2017), the Court (en banc) (8-3) in a 281-page opinion held that harmless error, not structural error, applied to determine whether defense counsel’s absence from the courtroom during the questioning of a prosecution witness at trial was reversible error. The Court recognized that in Cronic, the Supreme Court held that structural error occurs when a criminal defendant has been denied the assistance of counsel at a critical stage of the trial. But defense counsel “was present during 99.6 percent of Roy’s trial, and he vigorously represented Roy.” The Court reasoned that the 18 questions and answers that Roy’s counsel missed were not a “stage” or “critical stage” of a trial, because they did not constitute a separate step in the trial process, or a discrete phase of it. The Court also noted that it was able to make a prejudice analysis because it knew the precise questions and answers that defense counsel missed out on. The Court concluded that the error caused by counsel’s absence was harmless as to the single attempted child enticement charge, noting that in addition to the six images of child pornography mentioned during counsel’s absence, “the jury was presented with overwhelming and irrefutable evidence of Roy’s sexual interest in minor girls.” As to the counts of possession of child pornography, the evidence was also “overwhelming.”

Davis: Prosecution for witness tampering not multiplicitous

In U.S. v. Davis, No. 15-13241 (April 20, 2017), the Court affirmed the convictions of a defendant charged with being a felon in possession of a firearm, and with witness tampering and obstruction of justice in violation of 18 U.S.C. §§ 1512(b)(1) & 1503. The Court rejected Davis’ argument that the witness tampering and obstruction charges were multiplicitous because Congress did not intend for cumulative prosecution under §§ 1512 and 1503. The Court acknowledged that the Second Circuit had held that Congress intended for witness tampering to be prosecuted only under § 1512, but noted that the majority of circuits disagreed with the Second Circuit. The Court also noted that a prosecution under § 1503 involves interference with the due administration of justice, while a violation of § 1512 does not require a “pending judicial proceeding.” The Court rejected Davis’ argument that a prosecution under § 1512 for witness tampering involves an “implicit requirement” of a pending judicial proceeding, holding that so long as two offenses involve different elements, a court need look no further in determining that the prosecution of both offenses does not offend Double Jeopardy.

Gonzalez-Murillo: Remand for 3582 resentencing

In U.S. v. Gonzalez-Murillo, No. 16-11464 (April 4, 2017), the Court held that when it was unclear whether, at the original sentencing, the district court, under USSG § 5G1.3(b)(1), gave the defendant credit for 13 months he served in state custody for a term of incarceration that was undischarged at the time of the federal sentencing, the Court remanded for resentencing pursuant to a subsequently amended Guideline, pursuant to 18 U.S.C. § 3582(c)(2). The Court recognized that if the state custody was discharged, then any sentence reduction would have a discretionary departure, not subject to further reduction under § 3582(c)(2). But because the prior sentence might have not have been based on a departure, the Court remanded for resentencing.

Monzo: Affirming rejection of minor role reduction

In U.S. v. Monzo, No. 16-10222 (April 7, 2017), the Court rejected the argument that the district court erroneously failed to grant the defendant drug courier a “minor role” sentence reduction. The Court found that the district court did no erect any per se role for couriers in drug cases. The Court also rejected the argument that the district court erred in assigning three criminal history points for a prior Nevada drug-possession conviction, finding that Monzo was arrested on a probation violation, his probation was revoked, and he was sentenced to 12-30 months imprisonment. This 30-month sentence exceeded 13 months, the length of sentence sufficient to trigger three criminal history points.

Osman: Restitution for child pornography

In U.S. v. Osman, No. 14-14124 (April 12, 2017), the Court rejected a child pornography defendant’s challenge to a restitution order covering future therapy: “We are not dealing here with just the likelihood that a young child whose pornographic images are shared online will suffer residual effects from the reproduction of those images will need treatment. We are dealing with a child who was molested by her father, who will be informed of that fact, who will know that her father is absent from her life and suffering imprisonment based on that interaction. That is a heavy burden to place on a child. We cannot imagine that therapy will not be in order at the relevant times. Given the facts here, it seems that the need for future therapy is not just likely, but a virtual certainty.”

Pridgeon: Fla. Stat. 893.13 qualifies as controlled substance offense

In U.S. v. Pridgeon, No. 15-15739 (April 12, 2017), the Court affirmed the career offender sentence for a defendant convicted of methamphetamine trafficking. The Court rejected the argument that a Florida drug trafficking violation of Fla. Stat. § 893.13 fails to qualify as a “controlled substance offense” because the offense lacks the requisite mens rea with respect to the illicit nature of the substance. The Court pointed out that this argument was foreclosed by prior Circuit precedent.

Horner: Affirming tax fraud convictions

In U.S. v. Horner, No. 15-14675 (April 13, 2017), the Court rejected challenges to convictions for filing false tax returns. The Court rejected the argument that the government presented false testimony from an IRS agent. The testimony “was neither false nor misleading.” The Court also rejected the argument that the district court erroneously failed to give the jury the “good faith reliance” instruction that had been given in another case, pointing out that that this was not the “only acceptable instruction on good faith reliance.” The Court also rejected the argument that the district court erred in failing to instruct the jury on the “due diligence” obligations of tax preparers. The Court also rejected the argument that the district court erred in allowing the government to characterize the Horners’ cash deposits as “structuring.” “The evidence was highly probative in addressing the issue of the Horners’ financial savvy.” Finally, the Court rejected the argument that it was unfair to admit the defendants’ 2005 and 2006 tax returns. The Court found that these acts, though in earlier years, were part of the same set of actions through which the jury found the defendants committed tax fraud in 2007 and 2008.

Bergman: No withdrawal from conspiracy

In U.S. v. Bergman, No. 14-14990 (March 24, 2017), the Court rejected the argument that the defendant withdrew from the health care fraud more than five years before the indictment, and that the prosecution was therefore barred by the five-year statute of limitations. The Court concluded that the jury could reasonably have found that Bergman resigned his position at the firm that was committing fraud only under threat of being fired, and that this resignation therefore did not constitute the kind of affirmative step to disavow or defeat the conspiracy required for withdrawal. The Court rejected Bergman’s substantive unreasonableness challenge to his 180-month sentence. The Court pointed out that Bergman “played a key role” in perpetuating a scheme that fraudulently billed Medicare of nearly $200 million. The Court rejected a co-defendant’s claim that a “vulnerable victim” enhancement should not have been imposed based on patients who were also co-conspirators. The Court explained that some of the patients, including some who suffered from dementia, were not co-conspirators. [Martin, J., dissented from the statute of limitations holding, concluding that Bergman’s resignation qualified as a withdrawal from the conspiracy].

McCullough: reassignment of judge permissible after guilty plea

In U.S. v. McCullough, No. 15-15430 (March 15, 2017), the Court held that Fed. R. Crim. P. 25(b)(1), which bar reassigning a case to a new judge after a guilty verdict unless the judge who presided “at trial” is absent or disabled does not bar reassignment after a guilty plea. The Court noted that guilty pleas are governed not by Rule 25, but by Rule 11. The decision to separate Rules 25 and 11 suggests that Rule 25 does not apply to defendants who plead guilty. The Court also rejected the argument that the sentencing judge was too unfamiliar with the record. Turning to the Fourth Amendment suppression issue, the Court held that a traffic stop based on the police’s determination that certain portions of a vehicle’s Alabama licence plate were not clearly visible, in violation of a provision of the Alabama Code. This provided an objectively reasonable basis for the traffic stop. The Court also rejected the argument that the officer’s interpretation of the traffic code was inconsistent with the decision of an Alabama appellate court. Finally, the Court found that McCullough waived his argument in a supplemental authority letter that he was not a career offender, by failing to make this argument in his opening brief.

Butts: rejecting ineffective assistance of counsel claim

In Butts v. GDCP Warden, No. 15-15691 (March 9, 2017), the Court affirmed the denial of habeas relief to a Georgia death row inmate, rejecting his claim that counsel was ineffective for failing to develop mitigating evidence during the sentencing phase of his trial. The Court found that the defense team “thoroughly” investigated mitigating evidence. The Court declined to second guess trial counsel’s strategic decision to focus on residual doubt instead of mitigation evidence.