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

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

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

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

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

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

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

Castaneda: Upholding Enticement Convictions and 35-year Sentence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  

Jackson: Denying Rehearing En Banc

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

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

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

Gonzalez-Zea: Affirming Denial of Suppression Motion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In In re: Wild, Case No. 19-13843 (Apr. 15, 2021) (en banc), the Court once again denied a petition for mandamus brought by victims of Jeffrey Epstein.

The Court held, reluctantly, that the rights of victims under the Crime Victims’ Rights Act ("CVRA") of 2004, including the right to confer with prosecutors and be treated fairly, do not attach until federal criminal proceedings are initiated.  Here, there was no federal criminal proceeding brought.  So, despite evidence of a secret non-prosecution agreement between the government and Epstein, the victims’ statutory rights were never triggered.  The majority expressed its "profoundest sympathy" for the victims, but felt compelled to hold that the CVRA does not authorize a victim to seek judicial enforcement of her CVRA rights in a freestanding civil action. 

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

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

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

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

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

    

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

         

  

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

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

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

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

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

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

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

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

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