Miles: Florida Conviction for Unlawful Possession of a List Chemical Not an ACCA "Serious Drug Offense"

In United States v. Miles, No. 21-12609 (Lagoa, Brasher, Boulee), the Court vacated the defendant’s ACCA sentence.

The Court held that a prior Florida conviction for unlawful possession of a listed chemical under Fla. Stat. 893.149 is not a “serious drug offense” under ACCA. The elements of that offense requires one to possess the chemical with reasonable cause to believe that some person will use it to manufacture a controlled substance. However, that conduct does not itself involve (i.e., necessarily entail) “manufacturing” or “possessing with intent to manufacture” a controlled substance, as required by ACCA’s “serious drug offense” definition.

Gary: Florida Aggravated Assault is a "Violent Felony" under ACCA

In United States v. Gary, No. 21-13249 (July 21, 2023) (Wilson, Luck, Hull) (per curiam), the Court held upheld the defendant’s ACCA sentence.

The Court held that Florida aggravated assault qualified as a “violent felony” under the ACCA’s elements clause. The Court relied on its decision in Somers, which reached that same conclusion after the Florida Supreme Court held that simple assault could not be committed recklessly. Therefore, the offense remained a qualifying predicate notwithstanding the Supreme Court’s decision in Borden.

Ahmed: Affirming Convictions Over Numerous Challenges, Including Those Related to the Pandemic

In United States v. Ahmed, No. 20-14264 (July 13, 2023) (Rosenbaum, Branch, Brasher), the Court affirmed the defendant’s convictions for healthcare fraud, wire fraud, and money laundering.

First, the Court found no Sixth Amendment violation due to counsel’s failure to visit the defendant during an overnight recess out of concerns about the pandemic. Any lack of communication was not due to the government or the court but rather the lawyer’s concern for his own health. There is no indication he would have otherwise visited the client during that recess. And the district court otherwise went to great lengths to facilitate communication. The Court also declined to address an ineffective assistance of counsel claim on direct appeal because the record was not sufficiently developed. Finally, the Court rejected a series of pandemic-related complaints—i.e., that the defendant was not provided Adderall during trial, he sustained a slip and fall injury in jail, the jail confiscated his legal materials, he was shackled during trial, and the jury was unengaged—because the district court remedied these issues, the jury did not see him shackled, and there was no indication that the jury was unengaged.

Second, the Court rejected a claim of prosecutorial misconduct arising from the government’s insinuation during cross examination that a defense witness illegally prescribed medication under Florida law. The Court held that, even if that was correct, the defense did not hinge on that issue and there was no prejudice.

Third, the Court rejected three evidentiary claims. First, the district court excluded the defendant’s expert after she invoked her Fifth Amendment privilege. The Court upheld that exclusion because the district court conducted a particularized inquiry, the witness had a basis for invoking the privilege, and the expert’s unwillingness to answer certain questions prevented the district court and the government from challenging her qualifications and probing her credibility. Second, the Court upheld the exclusion of certain documentary evidence because they were hearsay and, although a close question, there was no abuse of discretion in finding that they were not business records. Finally,  the Court upheld the exclusion of testimony by the defendant’s former attorney about the defendant’s conduct because such character evidence was barred by Rule 404(a).

Garrison: Affirming Denial of 2255 Motion Challenging 924(c) Conviction Based on Davis

In Garrison v. United States, No. 20-13260 (July 13, 2023) (Branch, Luck, Antoon), the Court affirmed the denial of a 2255 motion challenging a 924(c) conviction based on Davis.

The 924(c) conviction in this stash house robbery case was based on two drug trafficking offenses and Hobbs Act conspiracy, the latter of which is no longer a predicate “crime of violence” post-Davis. At trial, the court instructed the jury that it could rely on any of the three predicates (including the now-invalid Hobbs Act conspiracy) to convict for the 924(c) count, and the jury returned a general verdict. While the Eleventh Circuit held that this scenario violated the Supreme Court’s decision in Stromberg, it concluded that the error was harmless because the predicate offenses were inextricably intertwined.  Thus, there was no possibility that the jury relied on the now-invalid Hobbs Act conspiracy predicate. The Court rejected the movant’s argument that it was precluded from looking beyond the jury instructions and the verdict to determine whether the 924(c) conviction rested on the invalid predicate.

Walker: Affirming Sex Trafficking by Coercion Convictions

In United States v. Walker, No. 22-10164 (July 13, 2023) (William Pryor, Luck, Hull), the Court affirmed the defendant’s sex trafficking convictions.

First, the evidence was sufficient to support a conviction of sex trafficking by coercion because a reasonable jury could have found that the defendant had a scheme, plan, or pattern intended to cause the woman to believe that failure to engage in prostitution would resulted in serious harm—namely, not having a place to stay and going hungry in a city hundreds of miles away from her home and family.

Second, and applying plain error, the government’s alleged failure to disclose its expert testimony before trial did not affect the defendant’s substantial rights because defense counsel anticipated the testimony and there was ample additional evidence of guilt apart from the expert’s testimony.

Perkins: Affirming 2255 Based on Claims of Alleged Incompetency at Sentencing

In Perkins v. United States, No. 20-14781 (July 10, 2023) (Branch, Grant, Schlesinger), the Court affirmed the denial of a 2255 motion.

First, the Court affirmed the denial of a substantive competency/due process claim. The district court did not clearly err in finding that the movant was competent at the time of sentencing and in rejecting the contrary determination by the movant’s expert.  The district court properly relied on jailhouse calls showing his knowledge of the proceedings. And the movant’s expert evaluated him six years after sentencing, and her testimony conflicted with other expert testimony.

Second, the Court affirmed the denial of an ineffective assistance of counsel claim based on counsel’s failure to investigate his mental health. The Court determined that counsel’s performance was not deficient because he took action after first learning about the movant’s mental health issues. In any event, any deficient performance was not prejudicial because there was no evidence that he would have been deemed incompetent at the time of sentencing had he been evaluated around that time.

Jews: Alabama Youthful Offender Conviction was not an Adult Conviction Under the Guidelines

In United States v. Jews, No. 22-10502 (July 6, 2023) (Wilson, Newsom, Lagoa), the Court vacated the defendant’s sentence.

The Court held that the defendant’s Alabama youthful-offender adjudication was not an “adult” conviction under U.S.S.G. 2K2.1 or 4A1.2. The Court reached that conclusion after applying four factors from circuit precedent. First, state law did not deem the prior to be a conviction at all, let alone an adult conviction. Second, the nature of the proceedings was, under state law, different in various substantive and procedural ways than an adult criminal proceeding. Third, he received a three-year sentence, a factor that cut in favor of an “adult” conviction but was not decisive. Fourth, and finally, the record did not reveal the amount of time he actually served. On balance, then, the Court concluded that the first two factors meant that the conviction was not “adult” under the Guidelines.

Gonzalez: Reaffirming That SR Sentences May Be Reduced Under Section 404 of the First Step Act, But Again Affirming the District Court's Denial of Relief Post-Concepcion

In United States v. Gonzalez, No. 19-14381 (June 21, 2023) (Jordan, Newsom, Tjoflat), the Court revised its earlier panel opinion from August 2021 in light of the Supreme Court's decision in Concepcion.  It again affirmed the denial of Mr. Gonzalez's motion under § 404(b) of the First Step Act.   

The Court reaffirmed its conclusion that Mr. Gonzalez's revocation of supervised release sentence was eligible for a reduction under the First Step Act because the underlying offense was a covered offense under § 404(b).  

The Court noted, however, that eligibility "is not the end of the matter," because though § 404(b) authorizes district courts to reduce sentences of defendants with covered offenses, it does not require them to do so.  In his post-Concepcion briefing, Mr. Gonzalez urged the Court to hold that district courts must always calculate and consider a defendant's new range under the Sentencing Guidelines before exercising its discretion under § 404(b), as the Seventh Circuit held in United States v. Corner, 967 F.3d 662, 666 (7th Cir. 2020), but the Court declined.  The Court disagreed with Mr. Gonzalez's argument that because the district court never made any determination as to his applicable penalty, it failed to demonstrate that it "reasoned through [his] arguments," as required by Concepcion.  That is, here, the district court did not abuse its discretion in denying Mr. Gonzalez's motion because it provided a brief statement of reasons that was clear and supported by the record.  As a result, the district court's explanation of its refusal to reduce Mr. Gonzalez's sentence did not violate Concepcion.     

Laines: Affirming Convictions and ACCA-Enhanced Sentence

In United States v. Laines, No. 21-11535 (June 6, 2023) (Bill Pryor, Rosenbaum, Marcus), the Court affirmed Mr. Laines's drug- and firearm-related convictions as well as his ACCA sentence, which was based upon a prior Florida cocaine conviction.  

Mr. Laines first argued that the evidence was insufficient to support two of his convictions--possession with intent to distribute and a related firearms offense--because there was no evidence that he had the intention to distribute the drugs he possessed.  The Court disagreed, finding that his intent to distribute had been proven circumstantially.  

He next argued that he was entitled to a new trial based on Brady and Giglio.  More specifically, he argued he was entitled to a new trial both because the police had unconstitutionally searched his phone upon his arrest and failed to disclose said search to the defense, and because the government failed to disclose prior to trial that one of its witnesses--one of the arresting officers in the case--had committed misconduct and was the subject of multiple internal investigations.  The Court disagreed, finding no reasonable probability of a different trial outcome.  

Finally, Mr. Laines argued that he was not ACCA because his prior Florida cocaine conviction was not a "serious drug offense" because its definition of cocaine is more expansive than the federal definition.  The Court, reviewing for plain error, found none, relying on its prior panel precedents in Travis Smith and Xavier Smith.  The Court expressly refused to find that its opinion in Chamu had abrogated its precedents about a prior conviction under Fla. Stat. § 893.13(1) qualifying as a "serious drug offense" under the ACCA.  The Court also clarified that Mr. Laines, as the appellant, bore the burden of establishing that the district court had plainly erred.  

Judge Rosenbaum dissented in part.  She believed that the sentence should be vacated and the case remanded for the government to establish that Mr. Laines was in fact ACCA.  That is, in light of Chamu, the government bore the burden of demonstrating that Mr. Laines's prior Florida cocaine conviction still qualified as a "serious drug offense."  More specifically, she noted that unlike in Chamu--which was an immigration case--here, in the criminal-sentencing environment, the government bears the burden of proving any sentencing enhancement--including an ACCA enhancement--applies.  

She also clarified that Mr. Laines's argument regarding the overbreadth of his Florida cocaine conviction was not precluded by prior panel precedent.  In her view, Chamu expressly explained that there are three categories of stereoisomers: optical isomers, geometric isomers, and nongeometric diastereomers.  So if nongeometric diastereomers of cocaine exist, then Florida’s definition of the substance is categorically overbroad in comparison to the federal definition.  She would have remanded for the government to show that there are no nongeometric diastereomers of cocaine.  

Finally, she also noted that a defendant's failure to object to the ACCA classification cannot relieve the government of its burden to establish the enhancement, nor can the defendant's failure to object to allegations of fact in the PSI.  This is so because, whether a cocaine-related conviction under section 893.13(a)(1) qualifies as a “serious drug offense” is a legal question, the answer to which is the same in every case for every defendant with such a conviction.  In her view, it would be "quite a stretch to characterize it as the type of 'allegation[] of fact' that we deem admitted in a PSI if a defendant fails to object."                  

Ware: Affirming Convictions and Sentence

In United States v. Ware, No. 21-10539 (June 1, 2023) (Newsom, Luck, Tjoflat), the Court affirmed Mr. Ware's convictions and sentence.

Mr. Ware was convicted of thirteen counts of Hobbs Act robbery and associated firearm offenses, and sentenced to life in prison.  On appeal, he raised three challenges to his convictions and one challenge to his sentence.   

Mr. Ware first contended the district court erred by not holding a formal Daubert hearing before admitting expert fingerprint evidence.  Mr. Ware relied on a 2009 United States National Resource Counsel ("NRC") report and subsequent 2016 President's Counsel of Advisors on Science and Technology ("PCAST") to argue that because fingerprint analysis involves individual human judgement, the resulting fingerprint comparison conclusion can be influenced by cognitive bias, rendering it unreliable.  The Court noted that a Daubert hearing is not always required and found that the district court had not abused its discretion in not holding a hearing.  The district court considered the reports and arguments presented and found that fingerprint evidence was reliable enough as a general matter to be presented to the jury.  Many of the critiques of fingerprint evidence found in the PCAST report go to the weight that ought to be given fingerprint analysis, not to the legitimacy of the practice as a whole.  Therefore, it was properly admitted and properly subject to cross-examination.      

He next contended that the district court erred by admitting lay identification testimony by two FBI case agents who met with Mr. Ware upon his arrest.  The court allowed the agents to identify Mr. Ware as one of the perpetrators of the robberies after viewing cellphone photos and surveillance footage and confirming his identification based upon their interactions with him after his arrest.  The Court found no abuse of discretion because the agents had first-hand knowledge of Mr. Ware's appearance outside the courtroom setting, and had contact with him for a combined 5 hours.  They also familiarized themselves with him less than two weeks after the last robbery, whereas the jury--though also capable of comparing Mr. Ware in the courtroom with the surveillance footage and photos found in a cellphone--would have been doing so by looking at Mr. Ware almost two years later.    

Finally, Mr. Ware contended the district court erred by instructing the jury on flight and concealment.  The Court found that the district court did not abuse its discretion in giving the instruction because the government presented evidence of concealment--Mr. Ware was hiding under a bed when law enforcement arrived to arrest him.      

Mr. Ware also challenged his sentence--more specifically, the application of the bodily restraint sentencing enhancement to three of the nine robberies.  Section 2B3.1(b)(4)(B) provides an enhancement for robberies where a victim was physically restrained by being tied, bound, or locked up.  But the enhancement also applies where the defendant's conduct ensured the victims’ compliance and effectively prevented them from leaving a location.  Here, the Court found the enhancement properly applied.  

Verdeza: Upholding Healthcare Fraud Convictions/Sentence Over Numerous Challenges

In United States v. Verdeza, No. 21-10461 (May 31, 2023) (William Pryor, Rosenbaum, Marcus), the Court affirmed the defendant’s healthcare fraud convictions and sentence.

First, the Court held that the evidence was sufficient to support the convictions under an aiding and abetting theory.

Second, the district court did not commit plain error by allowing an FBI agent to give “summary” testimony because there was no precedent holding that such testimony is, in itself, is improper. The district court did not abuse its discretion by admitting evidence under Rule 404(b) because no notice was required under the pre-2020 version of the Rule and the evidence was not impermissible propensity evidence. And any error by allowing the government to ask two leading questions was harmless given the overwhelming evidence of guilt.

Third, evidence at trial supported the district court’s decision to give a deliberate ignorance instruction, and any error was harmless given the evidence of the defendant’s actual knowledge.

Fourth, as to sentencing, there was no precedent supporting the defendant’s argument that the definition of “loss” in the commentary was ambiguous post-Dupree, and so there was no plain error in calculating the amount based on the defendant’s intended loss. There was no clear error in declining to apply the minor-role reduction. There was no error in the restitution award because the statute permits courts to order members of a fraud to jointly repay the victims. And the 48 month sentence, which fell below the guideline range, was not substantively unreasonable.

Gruezo: Upholding MDLEA Conviction Over Various Statutory and Constitutional Challenges

In United States v. Gruezo, No. 22-11342 (May 5, 2023) (Newsom, Grant, Hull) (per curiam), the Court affirmed the defendant’s MDLEA convictions. After previously issuing this unpublished opinion without oral argument, the Court granted the government’s motion to publish the opinion.

First, the Court held that there was jurisdiction under the MDLEA. The defendant stipulated that the vessel had no indicia of nationality visible, and that the master had no claim of nationality when asked. That was enough, the Court held, to support jurisdiction. The Court went to explain that the statute did not require the Coast Guard to ask the master to make a claim of both nationality and registry because the statute is written in the disjunctive.

Second, the Court upheld the constitutionality of the MDLEA. The statute was not vague because it gave notice that, without a claim or nationality or registry, the vessel will be considered stateless.  The statute did not violate Miranda by failing to inform the master of the consequences for failing to make such a claim; an as-applied challenge was waived by the guilty plea, and a facial challenge was foreclosed by precedent. Finally, the statute did not violent due process for failing to require a minimum nexus to the United States, as that argument was foreclosed by precedent.

Third, the Court upheld the denial of a minor-role reduction. The defendant, a crewman for a short period of time, could not prevail by pointing to a broader criminal scheme, and his involvement was still serious and important because he knowingly participated in transporting a large quantity of cocaine, and he played an important role.

Hamilton: 3553(c)(1)'s Statement of Reasons Requirement Applies to Supervised Release

In United States v. Hamilton, No. 21-14266 (May 2, 2023) (Rosenbaum, Jill Pryor, Tjoflat), the Court—without oral argument—affirmed the defendant’s 40-year sentence and lifetime term of supervised release after pleading guilty to enticing a minor, sending interstate extortionist threats, and producing child pornography.

As to the term of imprisonment, the defendant argued that the district court erred by applying a four-level enhancement under U.S.S.G. 2G2.1(b)(4). However, the Court found it unnecessary to address that argument because his total offense level would have remained unchanged under the grouping rules in 3D1.4. Thus, any error was harmless.

As to supervised release, the defendant argued that the district court failed to state its reasons. The Court clarified that the requirement in 18 U.S.C. 3553(c)(1)—that the court state the reasons for a guideline-range sentence—applied to supervised release. And it re-affirmed that it reviews that issue de novo, even where a defendant does not object. However, the district court need not make two separate explanations—one for imprisonment and one for supervised release--because most of the 3553(a) factors are the same. In this case, the district court did not separately address the 3553(a) factors in connection with supervised release, but it did address several of those factors in connection with the term of imprisonment, and that explanation applied equally. And the defendant could always seek to modify his term of supervision in the future.

Somers: FL Agg Assault a "violent felony" under ACCA

In Somers v. United States, No. 19-11484 (Apr. 25, 2023) (Jill Pryor, Anderson, Marcus), the Court affirmed Mr. Somers's ACCA-enhanced sentence. 

Mr. Somers argued that his prior conviction for Florida aggravated assault with a deadly weapon could not serve as an ACCA predicate because it can be committed with a mens rea of recklessness.  

The Court disagreed, and held that, because aggravated assault under Florida law requires a mens rea of at least knowing conduct, it qualifies as an ACCA predicate offense under Borden.

In so holding, the Court relied on guidance from the Florida Supreme Court, which held that the first element of the assault statute, section 784.011(1), requires not just the general intent to volitionally take the action of threatening to do violence, but also that the actor directs the threat at a target, namely another person.  That is, the Florida Supreme Court held that the Florida assault statute demands the specific intent to direct a threat at another person and therefore cannot be violated by a reckless act.   

Rolle: Holding § 1324(a) Has Extraterritorial Reach

In United States v. Rolle, No. 19-11354 (Apr. 14, 2023) (Wilson, Jordan, Brasher), the Court affirmed the district court's denial of Mr. Rolle's motion to dismiss the indictment. 

Mr. Rolle was charged with one count of conspiracy to encourage and induce aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I); 16 counts of encouraging and inducing aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii); and one count of conspiracy to allow, procure, and permit aliens to enter the United States, in violation of 8 U.S.C. § 1327.  

Mr. Rolle moved to dismiss the indictment, arguing that it failed to state a crime because his conduct occurred outside the United States.  The Court disagreed, and, as a matter of first impression, held that §§ 1324(a)(1)(A)(iv), (1)(A)(v)(I), and 2(B)(ii), apply extraterritorially.  Its holding is in line with the holdings of the  1st, 5th, 9th, and D.C. Circuits.   

In so holding, the Court affirmed the continued vitality of United States v. Bowman, 260 U.S. 94 (1922), which held the presumption against extraterritoriality does not apply “to criminal statutes which are, as a class, not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated . . . .”  The Court reasoned that § 1324(a)'s scope  and usefulness would be greatly limited if the statute were restricted to the territorial United States.  That is, given the nature of illegal immigration, much of the conduct under the statute is likely to occur beyond, at, or near our borders, and as a result, strongly suggests that Congress intended the statute to apply to extraterritorial conduct.

The Court also noted that its holding comported with international law because the protective principle supported the United States' exercise of jurisdiction.  

    

Burnette: Affirming Bribery-Based Convictions

In United States v. Burnette, No. 21-13990 (Apr. 11, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed Mr. Burnette's bribery-based convictions. 

Mr. Burnette, a real estate developer in Tallahassee, was accused of soliciting bribes from two undercover agents posing as property developers in order to sway a Tallahassee city commissioner's vote.  He was found guilty of Hobbs Act extortion, in violation of 18 U.S.C. § 1951(a); honest-services mail fraud, in violation of 18 U.S.C. §§ 1341, 1346; using a facility of interstate commerce to facilitate unlawful activity, in violation of 18 U.S.C. § 1952(a)(3); and making a material false statement to the FBI, in violation of 18 U.S.C. § 1001(a)(2).  

On appeal, Mr. Burnette's main challenge  turned on the Supreme Court's interpretation of the definition of "bribery"--as found in 18 U.S.C. § 201--in McDonnell v. United States, 579 U.S. 550 (2016).  In McDonnell, the Supreme Court narrowed the meaning of the term "official act," and clarified that in order to implicate the bribery statute's prohibition, a public official must either engage or agree to engage in (1) a sufficiently serious act--such as casting a vote (2) concerning a sufficiently serious and concrete matter.  

His challenge was, however, denied on the reasoning that some errors were invited, and others unpreserved, and Mr. Burnette could not meet the showing required for plain error--that the error affected his substantial rights.   

Mr. Burnette's other challenges--sufficiency of the evidence and evidentiary challenges--were also denied.  

The panel filed a separate concurrence to opine further on McDonnell and stress the importance of not "overread[ing]" the Supreme Court's opinion there.  The Court stressed that as an "inferior court," it and its sister courts "would do well to tread lightly and await further direction from [their] bosses before concluding that McDonnell revolutionized bribery laws as we have long known it."    

Dawson: Affirming Convictions for Sexual Exploitation of a Minor

In United States v. Dawson, No. 21-11425 (Apr. 5, 2023) (Wilson, Branch, Lagoa), the Court affirmed Mr. Dawson's convictions.  

The Court considered, as an issue of first impression, whether an adult who films himself exposing his genitals and masturbating in the presence of a child where the child is the object of the sexual desire in the film "uses" that child to engage in sexually explicit conduct for purposes of 18 U.S.C. § 2251(a), and held that such conduct fits squarely within the language of the statute. 

On appeal, Mr. Dawson argued that he did not violate § 2251(a) because the videos underlying his convictions depicted an adult engaging in solo, adult-only, sexually explicit conduct near a fully clothed minor who was neither the focal point of the images, depicted as a sexual object, nor otherwise involved in the sexual act.  He argued that his conduct did not constitute "uses" as that term is defined.  The Court disagreed, agreeing instead with the government's reading of § 2251(a)--that it covered passive use of a child in sexually explicit conduct.  That is, under § 2251(a), a minor must be involved in the offender's sexually explicit conduct, but need not necessarily be actively engaging in his or her own sexually explicit conduct.  

The Court noted, contrary to the Seventh Circuit in Howard, that its interpretation of "uses" in § 2251(a) did not pose a slippery slope problem because the statute ultimately requires fact-specific determinations.  As such, its passive interpretation of the term "uses" did not make the statute too broad.        

The Court also declined Mr. Dawson's invitation to rule in his favor by applying the rule of lenity because the Court found that the traditional tools of statutory interpretation provided sufficient clarity on the meaning of § 2251(a).  In so finding, the Court acknowledged that its application of the rule of lenity conflicted with those of the Third, Seventh, and Eighth Circuits.  Of note, the Court declined to hold--as the government argued--that Mr. Dawson's rule of lenity argument should have been reviewed for plain error because he failed to raise it below.  Instead, the Court clarified that a party cannot waive lenity--parties cannot waive the application of the correct law or stipulate to an incorrect legal test.   

Hall: Vacating Sentence and Remanding

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

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

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

Penn: Affirming ACCA Sentence Based on Florida Cocaine Sale Convictions

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

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

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

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

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