Deshazior: Florida Sexual Battery with a Deadly Weapon Satisfies the Element Clause of the ACCA

In United States v. Deshazior, No. 16-11373 (Feb. 20, 2018) (Reeves (E.D. Ky), Jordan, Jill Pryor), the Court upheld the defendant's ACCA enhancement.

After reiterating its prior precedents holding that Florida aggravated assault and resisting with violence qualified as violent felonies under the elements clause, the Court held that Florida sexual battery also satisfied that definition.  Although the Court, in an earlier case, had accepted the government's concession that Florida sexual battery did not satisfy the elements clause, it did so only for purposes of that case, and the sexual battery offense here required the use or threatened use of a deadly weapon.  Determining that the sexual battery statute was divisible, in part by consulting the standard jury instructions, the Court consulted the information in his case, which showed that his sexual battery involved the use or threatened use of a deadly weapon.  

The Court thus addressed whether the use or threatened use of a deadly weapon necessarily involved the use, attempted use, or threatened use of physical force.  It concluded that it did.  It rejected the defendant's argument that the offense was overbroad because a "deadly weapon" could include poison/anthrax, bleach, or an attack dog.  The Court acknowledged that those uses of force were not direct, but it concluded that they were nonetheless capable of causing physical injury or pain and thus satisfied the elements clause.  Relying on the Supreme Court's decision in Castleman, the Court concluded that it did not matter whether the force was applied indirectly rather than directly.

Llewelyn: Defendant Ineligible for 3582(c)(2) Reduction Where He Had Already Completed Term of Imprisonment

In United States v. Llewelyn, 16-10803 (Jan. 24, 2018) (Reeves (E.D. Ky.), Jill Pryor, Jordan), the Court affirmed the denial of the defendant's motion for a sentencing reduction under 18 U.S.C. 3582(c)(2).

The defendant had initially received a 110-month federal sentence in Florida.  He then received a 360-month federal sentence in North Carolina, which was to run consecutively.  He completed his Florida sentence in 2009 and began serving the North Carolina sentence.  In 2012, he filed motions to reduce his North Carolina sentence based on retroactive guideline amendments, and the federal court in North Carolina reduced his 360-month sentence to 235 months.  In 2014, following Amendment 782, he filed a pro se motion seeking a reduction of his Florida sentence.  The court denied the motion on the ground that the defendant had already completed that term of imprisonment.  The district court subsequently denied his motion for reconsideration, and he appealed 14 days later.

As an initial matter, the Court found that the defendant's notice of appeal was timely.  The government argued that the defendant's reconsideration motion was actually a motion to correct the sentence under Rule 35, and it therefore did not toll the time for appeal.  The Court rejected that argument, concluding that the court's denial of the 3582(c)(2) motion did not impose a new sentence and thus did not implicate Rule 35.  The defendant's appeal, filed within 14 days from the denial of the reconsideration motion, was therefore timely.

On the merits, however, the Court concluded that the defendant was ineligible for a sentencing reduction, because he had already completed his Florida term of imprisonment.  The Court rejected the defendant's argument that his two federal sentences were aggregated, and he was therefore only serving a single federal sentence for purposes of 3582(c)(2).  The Court rejected his reliance on: 18 U.S.C. 3584, which aggregates sentence for "administrative purposes" only; on habeas cases interpreting the "in custody" requirement; and on consecutive sentences imposed under 924(c) in a single proceeding.  The Court emphasized that the defendant was sentenced in different courts, at different times, and for different drug offenses, and thus there was no reason to aggregate the sentences for 3582(c)(2) purposes.  The Court expressly reserved whether sentences may be aggregated when a statutory mandatory consecutive sentence and a guidelines sentence are imposed in the same proceeding.

Presendieu: No Plain Error Under Rule 11 for Failing to List Elements of Offenses, but There Was Sentencing Error in the Loss Calculation and Minor-Role Reduction

In United States v. Presendieu, No. 15-14830 (Jan. 19, 2018) (Hull, Jordan, Boggs), the Court affirmed one defendant's bank-fraud and aggravated identity theft convictions, but vacated the other defendant's sentence due to two guideline miscalculations.

On appeal, the defendant argued for the first time that his guilty plea was invalid, because he was not adequately informed of the nature of the charges against him, since the court did not list and explain each element of the offenses.  Applying plain error, the Court rejected that argument, finding that neither offense was complex, the defendant was intelligent, the defendant understood the facts set forth in the factual proffer, he had discussed those facts with his attorney, and he voluntarily and intelligently pled guilty to the charges.

As for the other defendant's sentence, the Court first concluded that the district court erred in calculating her loss amount,  because, under the 2015 amendment to the relevant conduct Guideline, it improperly included conduct that was outside the scope of her "jointly undertaken criminal activity."  The Court found no evidence to support any connection between the defendant and the conduct of another individual in the larger check-cashing scheme on which the loss amount was partially based.

The Court upheld the two-level enhancement for production of counterfeit or unauthorized access devices under USSG 2B1.1(b)(11)(B)(i).   Although application of this enhancement is limited where the defendant is convicted of aggravated identity theft, the Court found that her offense involved production of false identification cards, as she provided cards to others and repeatedly referenced her source.

The Court upheld the two-level enhancement for the use of sophisticated means under USSG 2B1.1(b)(10)(C).  The defendant relied on Amendment 792, which required intentional conduct, but the Court refused to apply it to her, because it took effect after her sentencing, and it was a substantive rather than clarifying amendment.  Without the amendment, the Court found that the offense involved sophisticated means, because the defendant employed intricate measures to execute and then conceal the bank fraud.

Finally the Court found that the district court erred by denying her request for a two-level minor-role reduction under USSG 3B1.2(b).  The district court erred by relying solely on one factor--that the defendant was being held accountable only for her own actions as opposed to the broader conspiracy.  While that was a permissible factor, it was only one of many relevant factors under Amendment 794.  Moreover, the evidence was conflicting regarding her relative role, and the district court had not made factual findings in that regard.

Judge Jordan issued a concurring opinion on the plea issue.  He opined that, while the defendant had not shown plain error, there was seldom a good reason for a court not to set out the elements of an offense during the plea colloquy.  And he was skeptical that aggravated identity theft was an offense whose elements were apparent to lay people.

Brown: District Court Erred by Failing to Conduct a Re-sentencing Hearing After Granting his 2255 Motion

In United States v. Brown, Nos. 16-14267, 14284 (Jan. 18, 2018) (Martin, Marcus, Newsom), the Court held that the district court, after granting the defendant's 2255 motion based on Johnson, erred by failing to hold a re-sentencing hearing with the defendant present before it imposed the 10-year statutory maximum.  The defendant was entitled to a re-sentencing hearing with the opportunity to allocute, because the new 10-year sentence represented an unexplained upward variance from the revised guideline range, and the court did not consider the 3553(a) factors during the original sentencing proceeding but simply relied on what was then 15-year mandatory  minimum. 

More broadly, the Court reasoned that, to determine whether a defendant is entitled to a new re-sentencing hearing after a successful 2255 motion, it will ask whether the grant of post-conviction relief undermined the sentence as a whole (for example, implicating the sentencing package doctrine), and whether the sentencing court will be required to exercise significant discretion in modifying the defendant's sentence, perhaps on issues that it was not previously called on to consider at the original sentencing.  If so, then the new sentence will be a critical stage in the proceeding, requiring a hearing with the defendant present.

Watkins: Illegal Re-entry Defendant Could Not Collaterally Challenge Underlying Deportation Order Where Judicial Review was Available

In United States v. Watkins, No. 16-17371 (Jan. 5, 2018) (Wilson, Rosenbaum, Titus) (per curiam), the Court affirmed the defendant's illegal re-entry conviction.

The defendant argued that she could not be charged with illegal re-entry, because her underlying deportation order was invalid on the ground that it was based on a grand theft conviction that no longer qualified as a crime of moral turpitude.  The Court rejected that argument on the ground that the defendant failed to meet the requirements for collaterally challenging an underlying deportation order.  Specifically, the Court found that the deportation proceedings did not deprive her of the opportunity for judicial review, because she could have sought to reopen her immigration proceeding.  And, although the legal basis of her collateral challenge did not arise until after the 90-day deadline to do so, equitable tolling applies to the 90-day deadline, the defendant sought equitable tolling in order to reopen her proceeding, and the BIA determined that equitable tolling was not appropriate in her case.  The defendant, moreover, did not seek judicial review of that denial.

The Court also found no reversible error during the defendant's bench trial.  It found no abuse of discretion in permitting the government to collect the defendant's fingerprints used to establish her identity.  And, while the district court "likely erred" in admitting the fingerprint analyst's expert testimony under Daubert as unreliable -- for failing to testify about her scientific methods -- that error was harmless, because an officer testified about the defendant's identity, and the defendant herself repeatedly admitted that she had previously been deported.

Morales-Alonso: Georgia Aggravated Assault is a Crime of Violence Under the Enumerated Offense Clause of the Guidelines

In United States v. Morales-Alonso, No. 16-14925 (Jan. 5, 2018) (Julie Carnes, Edmondson, Kathy Williams), the Court held that Georgia aggravated assault qualified as a "crime of violence" under the enumerated offense clause, which is contained in the commentary to U.S.S.G. 2L1.2 and enumerates "aggravated assault."

The Court determined that Georgia aggravated assault roughly corresponded to the generic version of aggravated assault, which the Court had previously defined in Palomino-Garcia as a criminal assault accompanied by either an intent to cause serious bodily injury or the use of a deadly weapon.  The Court initially found that Georgia's aggravated assault statute was divisible, and, using Shepard documents, determined that the defendant was convicted of aggravated assault by using a deadly weapon or other object/device/instrument that is likely to or actually does result in serious bodily injury when used offensively.  Although aggravated assault with a deadly weapon was generic, the defendant argued that the Georgia offense was overbroad because it could be committed with an object, device, or instrument.  The Court rejected that argument because the Georgia courts had made clear that the object/device/instrument must be used as a deadly weapon.  That sufficed because the deadly weapon, as used in the generic offense, could be dangerous due to the way in which it was used in a particular case.  Finally, the Court rejected the defendant's argument that Georgia's statute could be violated by the use of an object/device/instrumentality that just happened to cause serious bodily injury, such as a golfer accidentally hitting someone with his ball.  The Court found that such conduct would not violate the statute, and the defendant's hypothetical was not supported by any case law and represented "legal imagination" rather than a "realistic possibility."

Foster: Rejecting Sufficiency, Loss Calculation, and Juror Misconduct Challenges to Uphold Wire Fraud Convictions and Sentence

In United States v. Foster, No. 15-14084 (Jan. 4, 2018) (Gilman, Jordan, Hull), the Court upheld the defendant's wire-fraud convictions and sentence.

First, the Court found sufficient evidence to support the convictions.  It found sufficient evidence that the defendant misrepresented the ownership of the land at the heart of the real-estate investment fraud, misrepresented purported news articles regarding the defendant's investment company, misrepresented that celebrities had purchased land through his company, and had the requisite criminal intent.

Second, the Court concluded that the district court correctly determined the loss amount for purposes of both his guideline range and restitution.  The Court rejected the defendant's argument that the value of the land should have been subtracted from the $8 million total loss figure because, even if the investors acquired a proprietary interest in the land, it was worthless as a practical matter, since they did not and likely could not obtain title to it.  The Court also refused to credit the value of the land on the ground that a fraudster is not entitled to an offset for value provided solely to conceal or perpetrate a fraud.

Third, the Court concluded that the defendant's sentence was procedurally and substantively reasonable. Aside from the sufficiency of the evidence and loss calculation, the defendant raised no additional procedural challenges.  And the Court found the 152-month sentence--imposed in the middle of the guideline range--to be substantively reasonable.

Finally, the Court found no error in the denial of the defendant's motion to vacate the verdict for juror misconduct in light of a post-trial letter, in which a juror stated that she had been bullied into the verdict and regretted her decision.  The defendant argued that he should have been permitted to question the juror under Rule 606(b)'s exception for extraneous prejudicial information improperly brought to the juror's attention.  The Court rejected that argument, reasoning that the juror's letter, referencing bullying and sway tactics during deliberations, pertained to purely internal (not extraneous) matters.  The Court further noted that the juror's letter described nothing more than typical features of juror deliberations.

Crabtree: No Double Jeopardy Violation in Medicare Conspiracy Where Defendants Acquitted at First Trial of Making False Statements

In United States v. Crabtree, No. 15-15146 (Jan. 3, 2018) (Wilson, Rosenbaum, Robreno), the Court upheld Medicare card fraud convictions and sentences.

First, the Court rejected the defendants' double jeopardy argument based on their acquittal at a first trial of making false statements.  The Court concluded that, because the false statement charges were limited to six particular therapy notes, the jury's acquittal on those charges did not necessarily include a finding that the defendants were not part of the broader conspiracy.  Double jeopardy therefore did not preclude the government from re-trying the defendants on the health care conspiracy charge (which resulted in a mistrial at the first trial).

Second, the Court found that overwhelming evidence existed to show that the defendants knew of object of the conspiracy and voluntarily joined it, given their numerous continuous acts in furtherance of the conspiracy over a number of years.

Third, the Court found no abuse of discretion in permitting the admission of testimony regarding Medicare coverage determinations, since it was relevant to the government's theory of motive, and the court issued a limiting instruction.  The Court no found abuse of discretion in permitting trial testimony about illegal kickbacks, since it was relevant one of the defendant's knowledge and involvement in the conspiracy.  And the Court found that, while it may have been error to have permitted expert testimony that one of the defendants may have violated a different law, any error was harmless given a limiting instruction and overwhelming evidence against the defendant.

Fourth, the Court found no abuse of discretion in the district court's dismissal and replacement of a juror who was repeatedly tardy.

Fifth, as to jury instructions, the Court found that any error giving the deliberate ignorance instruction was harmless because the court also instructed the jury on actual knowledge, and the jury could have convicted on such a theory.  The Court also rejected a defendant's challenge to an aiding and abetting instruction, as that instruction was not given in connection with the conspiracy charge.

Finally, the Court upheld two sentencing enhancements as to one of the defendants.  The Court found that a four-level enhancement for being an organizer/leader was warranted because he was the manager of the business, directed certain actions by his subordinates, authorized them to use his signature, and profited greatly from the conspiracy.  The Court also found that the vulnerable-victim enhancement was appropriate because the company served elderly patients with acute mental illness, and the defendant failed to properly treat them by signing whatever documents were put in front of him without regard to their medical needs.

Oscar: No Abuse of Discretion in Seating Alternate Jurors After Deliberations Began

In United States v. Oscar, No. 14-14584 (Dec. 20, 2017) (Hull, Jordan, Boggs), the Court affirmed two defendant's drugs/firearm convictions but vacated one of their ACCA sentences.

First, the Court concluded that the district court's answer to a jury note misstated the law of possession by allowing the jury to convict him of constructive or joint possession without having knowledge of the firearm.  The district court's initial instruction accurately explained the law of actual/constructive possession, and the supplemental instruction must be viewed in context.  Furthermore, the court's instruction of constructive possession -- as when the defendant has both the power and intention to take control of the firearm -- did not remove the knowledge requirement, because a defendant must necessarily have knowledge of a firearm in order to have an intention to take control over it later.

Second, the Court rejected a defendant's argument that the government committed prosecutorial misconduct by introducing evidence that another drug dealer was deceased.  That fact was relevant, the Court concluded, to explain why he was not charged or testifying at trial, even though he facilitated all of the defendants' crimes.  And any prejudice was mitigated by a curative instruction making clear that the defendants had nothing to do with the death.  The Court also found no misconduct by characterizing a defense witness as a liar given her inconsistent testimony.

Third, the Court rejected the defendants' arguments that the court erred in giving an Allen charge, dismissing a juror, and seating an alternate juror.  The Court found that the Allen charge was not coercive in substance because it was the pattern instruction; nor was its timing coercive, because it was given in response to a juror's comments indicating that the deliberations had stalled.  That the deliberations continued for several more days, and the jury ultimately acquitted one defendant of two counts, reflects its lack of coercive effect  The Court also found no abuse of discretion in dismissing a juror because, while courts should be cautious about doing so, this juror stated that she was biased, criticized the system, became emotional, and admitted that she could not follow the law.  Last, the Court concluded that the court did not err by replacing that juror with an alternate instead of allowing deliberations to proceed with 11 jurors.  Although the jury had already been deliberating for two days, and substitution after deliberations is not favored, the Court concluded that there was no abuse of discretion in light of the court's initial instructions and post-substitution instruction to begin deliberations anew.  In addition, the newly constituted jury deliberated for nine more hours and acquitted a defendant of two counts, reflecting a proper deliberation, and the court actually substituted two alternate jurors which theoretically may have decreased the chances of conviction.

Fourth, the Court found no abuse of discretion in denying one defendant's motion to sever because all the defendants shared a criminal network, and any potential spillover effect regarding drug crimes was mitigated by the court's two cautionary instructions, and the undercover agent's testimony that this defendant did not try to sell him drugs.  And the fact that the jury convicted one defendant of some crimes but not others reflects the jury's individual examination of each crime.

Finally, the Court vacated one of the defendant's ACCA sentence because it was based on Florida burglary, which is not a violent felony under circuit precedent.

Castaneda-Pozo: Upholding Substantial Financial Hardship Enhancement Where Bank Fraud Made Victims Insecure in Basic Life Necessities

In United States v. Castaneda-Pozo, No. 16-16031 (Dec. 19, 2017) (per curiam), the Court upheld two challenged sentencing enhancements in a bank fraud conspiracy.

First, the Court concluded that the district court did not clearly err by finding that the defendant was responsible for the scheme's entire intended loss amount.  The defendant testified that he was not aware of the scheme's relevant conduct, but the district court credited the contrary testimony of his co-conspirators.  Even though those co-conspirators had previously lied to investigators, the district court was free to credit their testimony over the defendant's.

Second, the Court concluded that the district court did not clearly err by finding that five or more victims of the scheme suffered substantial hardship under Amendment 792.  Although the Court had never before interpreted that provision, it relied on opinions from the Seventh and Eighth Circuits focusing on the economic situation of the victim.  In this case, several of the victims were required to repay $400-800 in rent payments, and because the stolen checks were submitted near the rent deadline, some of the victims had to borrow money to pay the rent and two were threatened with eviction.  The Court disagreed with the defendant that this amount to mere "hardship" rather than "substantial hardship."  Although each victim's economic loss might not seem great, the defendant's actions made them insecure in life's basic necessities, which constituted substantial hardship.

Johnson: District Courts Must Consider 3553(a) Factors When Denying Motions for Early Termination of Supervised Release

In United States v. Johnson, No. 17-12577 (Dec. 15, 2017) (Tjoflat, Hull, Julie Carnes) (per curiam), the Court concluded that the district court abused its discretion by summarily denying the defendant's motion for early termination of supervised release under 18 U.S.C. 3583(e)(1).

Relying on its 3582(c)(2) precedents, the Court made clear that the district court must consider the relevant 3553(a) factors when denying a 3583(e)(1) motion, and the record must reflect that the district court actually considered those factors in order to permit meaningful appellate review.  In that case, the Court concluded that the record was devoid of any such consideration, because the court summarily denied the motion without explanation.  In the motion, he explained that, after obtaining Johnson relief, he had over-served by 11 years and had successfully re-integrated himself into the community in the year since his release.  The Court rejected the government's speculative argument that the district court implicitly considered the factors because it had presided over the defendant's trial/sentencing more than 20 years earlier.  Nor could any such consideration be inferred from the defendant's 3583(e)(1) motion, because it made no mention of the factors and the government was not ordered to respond.  Accordingly, the Court found an abuse of discretion, and vacated and remanded for further consideration.

Nerey: Affirming Medicare Fraud Convictions and 60-Month Sentence Over Various Challenges

In United States v. Nerey, No. 16-13614 (Dec. 12, 2017) (Hull, Jordan, Boggs), the Court affirmed the convictions and sentence in a Medicare fraud case.

First, the Court found the evidence sufficient to support his convictions for conspiracy to defraud the US and by receiving kickbacks.  After recounting the "overwhelming" evidence against him, the Court rejected his argument that the evidence was insufficient because four co-conspirators were cooperating witnesses with the government.  Their testimony, even if not corroborated, was sufficient to support a conviction.  And, in any event, it was corroborated by a substantial paper trail and forensic analysis of bank accounts.

Second, the Court rejected the defendant's argument that the prosecutor engaged in misconduct that shifted the burden of proof.  He identified five instances of alleged misconduct, but only one incident -- where the prosecutor told the jury at closing that the defendant "can't explain" an FBI analyst's chart -- potentially shifted the burden.  However, the court sustained an objection to it, provided multiple curative instructions during closing, and the government presented overwhelming evidence of guilt.

Third, the Court concluded that the district court did not abuse its discretion by denying the defendant's motion to interview a juror.  When the jury returned its verdict, a juror wore a T-shirt stating "American Greed," which was also the name of a TV program relating to white collar crime.  The defendant argued that the shirt, which was promoted and sold on the internet with the idea that you can "show the world that you're no sucker," demonstrated his intent to make a statement and influence his fellow jurors based on an outside influence.  The Court agreed that an interview was not required because the defendant failed to lay out the questions he sought to ask or establish that the shirt was in fact linked with the TV program.  And, even if there was a connection, wearing that shirt did not prove his inability to serve as an impartial juror or follow the court's instructions.

Fourth, the Court upheld the admission of Rule 404(b) evidence.  The Court found that some evidence of the defendant's involvement with other home health care agencies was inextricably intertwined with the evidence in this case -- showing how he became involved in the agencies and why they trusted him -- and thus was not subject to Rule 404(b).  Additional evidence of the defendant's involvement as a patient recruiter was relevant to the broader conspiracy and thus relevant.  And evidence of a phone call where the defendant discussed "breaking [a man's] head" if he was a confidential informant was admissible because it went to his specific intent to engage in the conspiracy.  In any event, the Court found any error harmless in light of the overwhelming evidence of his guilt.

Finally, as to his 60-month sentence, the Court rejected his argument that the court miscalculated the Guidelines by making him responsible for the entire amount of the improper benefit conferred on the home health care agencies, which was $2.3 million.  He argued that he should be responsible only for the $250K he received in kickbacks, not for the amount fraudulently billed for the entire conspiracy.  Applying clear error, the Court rejected that argument because the defendant was significantly involved in the overall conspiracy, and his kickbacks were made possible by the conduct of his co-conspirators, which was reasonably foreseeable.

Baptiste: Diversionary Disposition to Withheld Adjudications Get One Criminal History Point under 4A1.1(c), not Two Points Under 4A1.1(b)

In United States v. Baptiste, No. 16-10781 (Nov. 28, 2017) (Rosenbaum, Wilson, Titus), the Court held that the district court incorrectly calculated the defendant's criminal history category and therefore vacated the sentence.

On appeal, the parties framed their arguments around whether a Florida court's imposition of a sentence of "198 days time served," referring at least predominately to the defendant's time in immigration custody, qualified as a "prior sentence of imprisonment" under 4A1.1(b) (warranting two points).  However, the Court found it unnecessary to reach that issue, because circuit precedent established that his conviction warranted only a single point under 4A1.1(c), since adjudication had been withheld.  While there was an exception to that rule for diversionary dispositions, that exception applied only to 4A1.1(c), not 4A1.1(b).  Therefore, he could not have received two points under the latter provision.  And, while he did receive a single point under 4A1.1(c) under the diversionary exception, that single point changed his criminal history category, the Court vacated the sentence and remanded for re-sentencing.

Alicea: New York Certificate of Disposition Sufficient to Prove Prior Conviction

In United States v. Alicea, No. 16-17545 (Nov. 9, 2017) (Ed Carnes, Tjoflat, William Pryor) (per curiam), the Court upheld the calculation of the defendant's guideline range.

First, agreeing with two other circuits, the Court held that a New York certificate of disposition was sufficient evidence to establish that the defendant had a prior serious drug offense.  The Court rejected his assertion that the certificate was insufficient because it was signed by an unidentified court clerk and mistakenly transposed the numbers of his birthday.

Second, and for purposes of calculating his criminal history score, the Court rejected his assertion that the government failed to provide reliable evidence to prove his three New York drug convictions.  The Court already addressed the argument with regard to one of the convictions.  With regard to the other two, it was undisputed that both convictions bore an identification number identical to Alicea's.  And while the arrests in those cases were made under different names, those names were known aliases of the defendant.  The Court alternatively concluded that any error was harmless, because his criminal history score would have remained the same in light of other convictions not challenged on appeal.

Davis: Alabama Sexual Abuse by Forcible Compulsion Does Not Satisfy ACCA's Elements Clause

In United States v. Davis, No. 16-10789 (Nov. 7, 2017) (Ed Carnes, Rosenbaum, Higginbotham), the Court "reluctantly" held that the Alabama offense of first degree sexual abuse by forcible compulsion did not satisfy the ACCA's elements clause.

The Court first found that the Alabama first-degree sexual abuse statute was divisible on its face, enumerating two separate crimes: sexual abuse by forcible compulsion, and sexual abuse of a person incapable of consent.  The defendant's plea colloquy revealed that he had been convicted of the former.  The Court, however, rejected the defendant's further argument that sexual abuse by forcible compulsion was itself divisible: although there are three ways that a defendant could engage in forcible compulsion, those were means, not elements, because the jury did not need to agree on which the defendant committed.'

Surveying Alabama law, the Court then concluded that sexual abuse by forcible compulsion did not necessary require the use of violent force under Curtis Johnson.  That was so because case law in Alabama made clear that one could commit the offense merely where an authority figure implies a threat of disciplinary action against a child, and not all such disciplinary actions involve violent force.  The Court noted that, although the defendant did not cite the key Alabama decision in the district court, he had sufficiently preserved his objection to the prior conviction, and a party does not forfeit an issue merely by failing to cite a specific case supporting that issue.  In a final footnote, the Court noted that its decision was consistent with the en banc decision in Vail-Bailon because, in that case, the defendant was relying on far-fetched non-violent hypotheticals that had never been prosecuted, whereas Alabama did actually prosecute sexual abuse involving authority figures threatening children.  Also, unlike this case, there was no state supreme court decision indicating that the state would apply to the non-violent scenarios.

Judge Rosenbaum concurred with the exception of the majority's final footnote discuss Vail-Bailon.  She reiterated her disagreement that the non-violent scenarios posited in Vail-Bailon were far-fetched, and that there was no state supreme court decision in that case supporting such an application.

Burgess: Court May Not Sua Sponte Invoke 2255-Waiver Provision Where Government Fails To Do So

In Burgess v. United States, No. 15-12045 (Nov. 6, 2017) (Rosenbaum, Julie Carnes, Schlesinger), the Court held that a district court is not permitted to sua sponte invoke a 2255-waiver provision in a plea agreement to dismiss a 2255 motion where the government fails to raise that defense in its response.  The court limited its holding to collateral-waiver provisions. 

Judge Carnes concurred, agreeing with the majority's conclusion, but emphasizing the narrowness of the opinion.  She pointed out that nothing prevents a district court from sua sponte directing the parties to address the waiver issue before the government responds.  And the government may seek to amend its response to belatedly add a waiver defense, subject to the court's discretion.

Longoria: Substantive and Conspiracy Drug Distribution Convictions Can Occur on Separate Occasions for ACCA Purposes

In United States v. Longoria, No. 16-17645 (Nov. 1, 2017) (Tjoflat, Marcus, Jordan) (per curiam), the Court upheld the defendant's ACCA sentence.

The Court found that the defendant's serious drug convictions occurred on separate occasions.  To reach that conclusion, the Court held that a drug distribution offense may occur on a separate occasion from an overlapping conspiracy to distribute that drug.  In that case, the Court relied on Shepard documents to find that the substantive and conspiracy convictions were clearly defined and occurred on separate occasions.

The defendant's remaining arguments were foreclosed by binding precedent.  Specifically, the defendant argued that the dates of his prior convictions were non-elemental facts that could not be considered under Shepard, but that argument was foreclosed by Weeks.  Second, and relatedly, the Court held that there was no Fifth or Sixth Amendment violation by determining that the convictions occurred on separate occasions.  Third, and finally, the binding precedent foreclosed any argument that his 922(g) conviction was unconstitutional under the Commerce Clause.

Mathews: Failed Drug Test Does not Categorically Preclude Reduction for Acceptance of Responsibility

In United States v. Mathews, No. 16-11191 (Oct. 30, 2017) (Hull, Jordan, Gilman), the Court considered three Guideline calculation issues, and it ruled in the defendant's favor on one.

First, the Court upheld the application of the enhancement in 2J1.2(b)(3) for altering a substantial number of records, or, alternatively, altering essential or especially probative records.  The Court upheld the increase under the latter option, because the defendant altered a medical patient's records from the day of his death, which was essential to and obstructed the VA's investigation.  The Court found irrelevant  the defendant's subjective intent as to why he altered the records; it mattered only that he selected those records to destroy or alter.

Second, the Court upheld the application of the vulnerable-victim enhancement in 3A1.1(b)(1).  The victim was 76 years old and recovering from heart surgery, and it was irrelevant whether the defendant "targeted" the patient based on those infirmities; it required only that the defendant knew or should have known that the victim was vulnerable.  The Court further rejected the defendant's argument that the only victim harmed by his computer and record-related convictions was the United States, not the patient.  It emphasized that a person can qualify as a victim even if the defendant's conduct exposes that person to a risk of harm that was reasonable foreseeable.  The defendant's conduct met that standard and qualified as relevant conduct.

Third, the Court found that the district court erred by believing that a failed drug test precluded a reduction for acceptance of responsibility as a matter of law.   The Court noted that the Guidelines did not include any conduct that categorically precludes a defendant from receiving a reduction.  The Court could not find the error harmless because it reduced the defendant's guideline range.  Accordingly, it vacated the sentence and remanded for the limited purpose of allowing the court to determine whether a reduction was warranted.

Dixon: Florida Battery by Strangulation is a Crime of Violence under the Elements Clause

In United States v. Dixon, No. 17-10503 (Oct. 23, 2017) (Marcus, Jordan, Rosenbaum), the Court, without holding oral argument, held that Florida battery by strangulation under Fla. Stat. 784.041(2)(a) was a crime of violence under the elements clause.

This offense prohibits intentionally impeding the victim's normal breathing/blood circulation by applying pressure on the throat or neck or by blocking the victim's nose or mouth, and creating a risk of great bodily harm.  The Court found that, based on the plain language of the statute, this offense could not be committed without violent force -- that is, force capable of causing physical pain or injury.  The Court found that several non-violent hypothetical violations offered by the defendant -- including temporarily placing a pillow over a spouse's nose/mouth, removing a spouse's sleep apnea mask, or sitting on a spouse's chest -- were either "implausible" or would not actually violate the statute.  Other hypotheticals offered -- such as holding a spouse's head under water by applying pressure, and sitting in a spouse's chest and placing a hand over their mouth -- would require violent force.

George: Plain Error for Failing to Permit Allocution Before Imposing Sentence

In United States v. George, No. 16-14812 (Oct. 6, 2017) (Hull, Jordan, Gilman), the Court concluded that the district court did not clearly err by applying the firearm enhancement in USSG 2D1.1(b)(1) and premises enhancement in 2D1.1(b)(12), but did commit plain error by not allowing the defendant to allocute before it pronounced sentence.

As for 2D1.1(b)(1), the Court concluded that the enhancement was proper, because the defendant possessed a loaded firearm behind the reception area of a salon used as a front for his criminal activities.  Even though the criminal activities occurred in the back room of the salon, the government proved that the firearm was "present" at the location where he ran his criminal activities, and the defendant did not meet his burden to prove that it was "clearly improbable" that the gun was connected to the criminal activities. 

As for 2D1.1(b)(12), the Court applied a totality of the circumstances test adopted by other circuits to determine whether the defendant "maintained" the premises for drug trafficking.  The evidence supported the conclusion that a "primary purpose" of both the salon and an apartment was for drug distribution.  Thus, the Court upheld the enhancement.

As for allocution, the Court concluded that, merely by asking if there was "anything further from the other side," the district court did not fulfill its Rule 32 obligation to address the defendant personally in order to give him a chance to speak.  Relying on its recent decision in Doyle, the court found the error plain, observing that Rule 32 required the court to give the defendant a chance to speak before (not after already) imposing sentence, and the Court presumed prejudice under Doyle because he was not subject to a mandatory minimum sentence and thus could have varied downward.  The Court distinguished a former Fifth Circuit decision upon which the government relied.  Accordingly, the Court vacated the sentence and remanded for allocution only.