Mauk: Dismiss w/o prejudice to let habeas petitioner exhaust

In Mauk v. Lanier, No. 06-12137 (Apr. 23, 2007), the Court affirmed, on failure to exhaust grounds, the denial of habeas relief to Georgia prisoner who argued that the Georgia appellate court which affirmed his Georgia conviction ran afoul of his Sixth Amendment right to jury trial when it determined that the outdoor area in which Mauk committed an act of sodomy was not a "private place" and therefore ran afoul of the Georgia statute which criminalized sodomy in a "public place."
Without reaching the merits of Mauk’s Sixth Amendment argument, the Court found that Mauk had not exhausted this argument in the Georgia courts. The Court remanded the case with instructions to dismiss the petition without prejudice, in order to give Mauk an opportunity to exhaust his argument in the Georgia state courts.

Livesay: Probation unreasonable for key HealthSouth fraud participant

In U.S. v. Livesay, No. 06-11303 (April 19, 2007), the Court reversed as unreasonable a sentence of probation on a defendant convicted of involvement in HealthSouth’s "$1.4 billion dollar securities fraud."
The Court found that the district court’s § 5K1.1 downward departure was excessive. The advisory guidelines range was 78-97 months. Livesay was a "key" participant in the offense. Citing U.S. v. Martin, 455 F.3d 1227 (11th Cir. 2006), in which it also reversed a low sentence for another important participant in the HealthSouth fraud, the Court noted that valuable cooperation "is not a get-out-of-jail free card." Livesay, moreover, did not withdraw from the conspiracy until after it was discovered. A probation sentence fails to deter other white collar criminals. Although Livesay was below Martin in the HealthSouth hierarchy, he still has "power." Further, Livesay personally profited from the fraud for several years.

Garcia-Jaimes: Can't Possess Atlanta Weapon While in Texas

In U.S. v. Garcia-Jaimes, No. 05-14475 (April 19, 2007), the Court affirmed drug trafficking and money laundering convictions against multiple defendants, but reversed one gun possession conviction.
As to the money laundering convictions, the Court rejected the argument that the evidence was insufficient because the government only established that drug money was hidden from the police inside cars loaded on the car hauler destined from Mexico, and never showed that any funds were actually transported outside the United States. The Court stated that hiding money inside cars on car hauler trailers was an attempt to conceal the money’s association with an illegal enterprise. This sufficed for purposes of establishing guilt under 18 U.S.C. § 1956(a)(2)(B)(i).
The Court reversed one defendant’s gun possession conviction. This defendant stayed in Texas or Mexico at all relevant times; the weapons were seized in Atlanta. Thus, this defendant was not in a location where he exercised possession over the weapons.

Orisnord: Fleeing is a "Crime of Violence"

In U.S. v. Orisnord, No. 05-14659 (Apr. 11, 2007), the Court rejected challenges to the sufficiency of the evidence by defendants convicted of charges arising out of a staged home invasion robbery of drugs. As to one defendant, the Court accepted, without elaboration, the government’s concession that the evidence was insufficient only as to the firearms convictions.
The Court rejected the argument that the Confrontation Clause was violated when the court did not permit additional questioning of an ATF agent regarding his tactical methods. The court found that the questioning which was permitted sufficed to assess the agent’s credibility.
The Court further affirmed the denial of requests to conduct post-verdict interviews of specific jurors regarding juror impropriety. The Court found that the improprieties at issue did not warrant further inquiry.
Turning to the sentences, the Court held that the crime of fleeing and eluding law enforcement officers qualified as a "crime of violence" for purposes of the career offender sentence enhancement provisions of the guidelines. Noting the "serious potential risk" posed by fleeing law enforcement, the Court joined several other circuits (except the Ninth) to hold that fleeing constitutes a "crime of violence." Finally, the Court found the 420-month sentences "reasonable."

Ohayon: Acquittal on key factual issue precludes retrial on related count

In U.S. v. Ohayon, No. 05-17045 (April 12, 2007), the Court (Pryor, Birch, Nanble b.d.) held that the government was collaterally estopped from retrying Ohayon on the charge of conspiracy to possess ecstacy with intent to distribute, a count for which the jury was unable to reach a verdict, when the jury had acquitted him, in the same transaction, of the charge of attempted possession with intent to distribute.
Citing Ashe v. Swenson, 397 U.S. 436 (1970), the Court noted that the collateral estoppel inquiry focused on whether a rational jury could have grounded its acquittal on a factual issue other than that which the defendant seeks to foreclose from consideration, taking account of the pleadings, evidence, charge and other relevant matter. Here, Ohayon’s only defense was that he was unaware that the bags he picked up contained drugs. The jury’s questions to the court during deliberations focused on this issue. The evidence supported the defense. Hence, this issue was resolved in Ohayon’s favor with the attempt acquittal at the first trial, and this foreclosed his subsequent conviction on the conspiracy count.
The Court rejected the government’s argument that the very existence of a partial verdict itself meant that the jury must have rested its acquittal and non-decision on different grounds. The Court noted that the precedent upon which the government relied postdated U.S. v. Larkin, 605 F.2d 1360 (5th Cir. 1979), and was inconsistent with Ashe. In addition, one cannot impute a single, rational basis to a mistried count, since, by definition, the jury failed to reach agreement on that count.
The Court rejected the argument that knowledge of the contents of the bags in question was not an essential element of the conspiracy charge. Conspiracy requires proof that the defendant knew the essential nature of the conspiracy, which in this case meant he was aware of the contents of the bags.
The Court distinguished U.S. v. Brown, 983 F.3 201 (11th Cir. 1993). Brown stated that an "identity" of legal issues must exist in order for collateral estoppel to apply. The Court acknowledged that no identity of legal issues existed in Ohayon’s case, because attempt and conspiracy have different elements. But Brown’s "identity" requirement was unnecessary to its holding. Further, Brown departed from earlier precedent, which focused on factual, not legal identity of issues. Finally, Brown has not been followed in subsequent cases.

Garey: Right to Counsel is "Preeminent" vs Self-Representation

In U.S. v. Garey, No. 05-14631 (Apr. 11, 2007), the Court (2-1) set aside the defendant’s guilty plea because the district court violated his right to counsel.
At the plea colloquy, the defendant asked to be relieved of appointed lawyer, whom he felt had a conflict because he was one of the victims of the defendant’s alleged crime – which involved threats of using a weapon of mass destruction. The trial court told the defendant he could only proceed without this lawyer if he represented himself. The defendant said he would go forward with self-representation involuntarily, because he wished to be represented by counsel – but not by his current court-appointed lawyer.
Noting the difficulty of reconciling the right to counsel and the right to self-representation, the Court noted that the right to counsel is the "preeminent" of the two. Consequently, a defendant must clearly invoke the right to self-representation. Here, Garey did not do so, because he stated that he would only proceed without representation "involuntarily." Accordingly, the Court vacated Garey’s guilty plea and remanded the case.

Lett: No Rule 35(a) authority to modify sentence where error was not "clear"

In U.S. v. Lett, No. 06-12537 (Apr. 6, 2007), the Court held that a sentencing "error" was not "clear" enough (if sentencing error even occurred) to authorize the district court’s correction of a sentence pursuant to Fed. R. Crim. P. 35(a).
The defendant, a war veteran who had served the country with distinction, was convicted of drug trafficking. His guideline sentence was 70 months. The statutory mandatory minimum was 60 months. The defendant sought a safety-valve reduction below the mandatory minimum – and the guideline sentence. Believing that it was not authorized to sentence below the mandatory minimum when the Guideline range was above the mandatory minimum, the district court imposed a 60-month sentence. A motion was then filed under Rule 35(a), arguing that post-Booker, the court was in fact authorized to grant the defendant a safety-valve sentence. The district court noted that the answer to this question was "not clear" because of the lack of applicable caselaw. It decided to modify the sentence, and imposed a sentence of time served, in effect, eleven days.
Reversing, the Court of Appeals pointed out that to show "clear error" under Rule 35(a), a party had to show "obvious errors." Here, the error was not obvious, because the district court merely misunderstood (at most) its sentencing discretion, but still imposed a permissible sentence under the Guidelines and applicable statutes. "Arguable error is one thin, and clear error is another." In the absence of caselaw on point in the Circuit, no clear error occurred. The Court remanded with instructions to impose the original 60 months sentence.

Robbins: Conviction becomes final after sentence becomes final

In Robbins v. Sec. Dep’t of Corrections, No. 05-14992 (Apr. 3, 2007), the Court reversed the dismissal on untimeliness grounds of a § 2254 habeas petition. Accepting the State’s confession of error, the Court ruled that a conviction is not final until affirmed on direct appeal. Here, the state court imposed a sentence on resentencing, and Robbins’ statute of limitations began to run after this sentence became final, subsequent to his conviction.

Clay: 60-month sentence ok for extraordinary rehabilitaton.

In U.S. v. Clay, No. 06-10088 (Apr. 3, 2007), the Court (Carnes, Pryor, Farris b.d.) affirmed the imposition of a 60-month sentence on a defendant convicted of methamphetamine trafficking, when the advisory Guidelines range was 188-235 months.
The Court first rejected Clay’s challenge to the denial of his motion to suppress. The Court found that the police had reasonable suspicion to pat-down Clay’s person when they saw a shotgun in plain view. The search of Clay’s pocket was also reasonable, because the object the officer felt in Clay’s pocket felt like a screwdriver that might be used as a weapon (it turned out to be an empty barrel from a ball-point pen, which is used for ingesting narcotics).
The Court held that the district court did not err in relying on acquitted conduct in enhancing Clay’s sentence. The resulting increase in the sentence – 3.7 times the bottom of the Guideline range – was not so extraordinary as to violate Due Process.
Rejecting a government appeal, the Court held that the sentence was not unreasonable. The Court reiterated that extraordinary reductions from the Guidelines based on § 3553(a) "must be supported by extraordinary circumstances." Here, the district court found extraordinary rehabilitation in the time after Clay’s indictment, and before his conviction. Clay worked a second job, inspired fellow drug addicts to overcome their addiction, and visited a juvenile detention center to encourage young people to change their lives.

Lindsey: Tip with corroborration sufficient for detention

In U.S. v. Lindsey, No. 05-11273 (March 27, 2007), the Court (2-1, Barkett, J., dissenting), the court affirmed the conviction and 300-month sentence of a defendant convicted of being a felon in possession of one or more rounds of ammunition.
The Court affirmed the denial of a motion to suppress, finding that there was sufficient reasonable suspicion of criminal behavior to justify the defendant’s detention. The police received a tip from a person who identified himself as "Davis" reporting that four black males were loading guns and putting them in a large white SUV parked at a gas station across from a bank. The police had been investigating a series of armed bank robberies by three or four blacks who entered banks with assault weapons and drove SUV-type vehicles. The police went to the scene and saw a white Ford SUV parked behind the gas station, with four black occupants, which moved when a police vehicle came into view. The police shouted to the individuals to get on the ground. Police converged. The defendant was arrested.
The Court distinguished Florida v. J.L., 120 S.Ct. 1375 (2000), finding that the police here had more than an inchoate and unparticularized suspicion based on an anonymous tip. The tip was consistent with an ongoing investigation. Further, the movement of the SUV when the police vehicle came into view gave rise to further suspicion.
The Court further found that probably cause supported the defendant’s subsequent arrest. After the police had detained the four occupants of the SUV, an armored car pulled up to the bank, and guards loaded money into it. The four men were convicted felons. Peering through the tinted windows the SUV, police saw what they believed was a rifle bag.
The Court further rejected defendant’s challenge to the search of the vehicle, noting the applicability of the automobile exception to the warrant requirement.
The Court found no Brady violation in the destruction of a fingerprint card which, the police claimed, contained no valuable information.
Finally, the Court affirmed the district court’s admission of uncharged criminal activity, namely defendant’s plan to rob a bank, at trial. This evidence was "inextricably intertwined" with the charged conduct.
Finally, the Court found no error in the 300-months sentence reliance on uncharged criminal activity, or on prior convictions.

Jimenez: Court denies certificate of appealability

In Jimenez v. Dep’t of Corrections, No. 06-14523 (March 23, 2007), the Court denied a certificate of appealability to a Florida death row inmate who claimed that the Florida Supreme Court failed to apply retroactively a defense-favorable burglary precedent to him.
The Court noted that Jimenez failed to exhaust his retroactivity claim in the Florida courts, and that he was now barred from doing so in federal court, because his claim would now be procedurally defaulted in Florida state courts, and he had not shown "cause" for the default. Even if his claim were not defaulted, the Court found no constitutional error in the Florida courts’ refusal to apply a precedent retroactively to Jimenez.
The Court found Jimenez’ remaining claims to be procedurally barred, or failed to assert a claim worthy of a certificate of appealability.

Smith: Mere Possession = In Connection

In U.S. v. Smith, No. 06-14077 (March 19, 2007), the Court affirmed the 294-month sentence of a defendant convicted of possession of ammunition by a convicted felon.
Smith, a convicted felon, was stopped in an automobile and seen attempting to conceal a firearm and cocaine. He fled on foot. When arrested, one .38 caliber bullet was found in his pocket, another on the ground where he had thrown it. The sentencing court imposed a sentence enhancement based on the guideline provision which calls for enhancements when ammunition is possessed "in connection with" a drug felony or another felony offense. Smith challenged the enhancement on the ground that the ammunition was not possessed "in connection with" another felony. The Court rejected this argument, concluding that "mere possession" of the ammunition sufficed to make it "in connection with" another felony.
The Court also rejected the argument that the sentencing court erroneously treated the Guidelines as mandatory, noting the Court’s reference to the "advisory range."

Thompson: Counsel did not adequately consult regarding appeal

In Thompson v. U.S., No. 05-16970 (Mar. 14, 2007), the Court (Tjoflat, Barkett & Kravitch) reversed the denial of a § 2255 motion.
The defendant claimed that his counsel was ineffective for failure to file a notice of appeal. The Court affirmed the district court’s finding that the defendant had not instructed his lawyer to file a notice of appeal. However, the Court found that counsel had not adequately discussed the appeal with his client. Counsel had told the defendant an appeal of his sentence would not be worthwhile, in a five-minute exchange. The Court found that this was not adequate "consultation." Moreover, the defendant was "unhappy" with the sentence he received. This demonstrated a reasonable probability that, had the defendant been adequately consulted, he would have requested an appeal. Hence, counsel was ineffective.

Dingle: No experts on cause of death not ineffective assistance

In Dingle v. Sec. Dep’t of Corrections, No. 05-13408 (March 8, 2007), the Court held that counsel was not ineffective for not calling any expert witnesses regarding the cause of the victim-baby’s death at a second trial, when, at the defendant’s first trial, counsel had called expert witnesses and this first trial ended with a guilty verdict.
The Court found that the tactical decision not to call expert witnesses was meant to focus on the issue of intent rather the issue of causation, and avoiding drawing attention of the brutality of the baby’s injuries.

Gilliam: No Brady violation for death row inmate

In Gilliam v. Sec. Dep’t of Corrections, No. 05-16638 (March 6, 2007), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1982 murder.
The Court rejected the argument that the Florida state court erred in not finding a Brady violation in the State’s failure to disclose a police report that indicated that the victim was a prostitute. The Court found that this evidence would not have changed the evaluation of whether the defendant lacked the mental state to commit the murder.
The Court also rejected an ineffective assistance of counsel claim based on his counsel’s opening the door to the defendant’s prior rape conviction. The Court declined to resolve whether this was deficient performance, finding that in any event it did not sufficiently compromise the defense.
The Court finally found nothing unreasonable in the Florida courts’ rejection of the argument that counsel was ineffective at the penalty phase, noting, for example, that counsel could "focus on few points in closing" or even forego a closing argument altogether – and counsel did argue that life imprisonment would suffice as punishment, an argument the jury and the sentencing judge did not adopt.

Gilliam: no Brady violation for death row inmate

In Gilliam v. Sec. Dep’t of Corrections, No. 05-16638 (March 6, 2007), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1982 murder.
The Court rejected the argument that the Florida state court erred in not finding a Brady violation in the State’s failure to disclose a police report that indicated that the victim was a prostitute. The Court found that this evidence would not have changed the evaluation of whether the defendant lacked the mental state to commit the murder.
The Court also rejected an ineffective assistance of counsel claim based on his counsel’s opening the door to the defendant’s prior rape conviction. The Court declined to resolve whether this was deficient performance, finding that in any event it did not sufficiently compromise the defense.
The Court finally found nothing unreasonable in the Florida courts’ rejection of the argument that counsel was ineffective at the penalty phase, noting, for example, that counsel could "focus on few points in closing" or even forego a closing argument altogether – and counsel did argue that life imprisonment would suffice as punishment, an argument the jury and the sentencing judge did not adopt.

Taylor: Fictional robbery can violate Hobbs Act

In U.S. v. Taylor, No. 05-14652 (March 6, 2007), the Court held that a Hobbs Act conspiracy by means of robbery can be established even though the object of the planned robbery, cocaine, did not exist, because the robbery was a sting set up by government agents and confidential informants.
The Court held that the fact that the intended victims and narcotics were fictional was irrelevant to whether the Hobbs Act was violated. The interstate nexus was sufficient to establish a violation.

Gordon: Lawrence resolves habeas untimeliness

In Gordon v. Dep’t of Corrections, No. 06-15783 (March 1, 2007), the Court affirmed the denial of a federal habeas petition on grounds that it was untimely under the AEDPA.
The petitioner had relied "on the hope, now forsaken, that the Supreme Court in reviewing [the Eleventh Circuit’s] Lawrence [v. Florida] decision would provide him with some basis for relief." That hope was forsaken because the Supreme Court affirmed the Eleventh Circuit’s holding. Consequently, the petitioner lost on all his arguments. The statute of limitations is not equitably tolled when the failure to file on time is the fault of capital case counsel specially appointed and supervised by Florida courts. Further, the statute of limitations is not tolled during the time a petition for certiorari is pending before the U.S. Supreme Court in state collateral proceedings. The failure of his court-appointed counsel to file more promptly did not constitute an impediment to filing by State action.

Perez-Oliveros: Importation is continuous until destination reached

In U.S. v. Perez-Oliveros, No. 06-12757 (Feb. 22, 2007), the Court affirmed the conviction and sentence of a defendant convicted of methamphetamine trafficking.
The Court affirmed the sentence enhancement under USSG § 2D1.1(b)(4), which calls for a two-level increase if the offense involved the importation of methamphetamine. The Court noted that from the fact of Perez’ truck having crossed the Mexican border 14 hours prior to Perez’ arrest, the sentencing court could infer that the methamphetamine was in Perez’ truck when it crossed the border. The Court also rejected the argument that no evidence showed Perez was in the truck when it crossed the border. The Court pointed out that the enhancement applies if the offense "involved" importation. The Court also rejected the argument that the importation had ended by the time Perez began driving the truck. The Court noted that importation is a continuous crime that is not complete until the controlled substance reaches its final destination point, which in this case was Mobile, Alabama, where Perez was destined.

Yost: Attempt means beginning to make arrangements

In U.S. v. Yost, No. 06-10911 (Feb. 26, 2007), the Court affirmed the conviction of a defendant convicted of attempt to use the Internet to entice a minor to engage in criminal sexual activity, in violation of 18 U.S.C. § 2422(b), rejected Yost’s arguments that the evidence was insufficient to convict.
The Court found that Yost satisfied the intent element of the attempt offense when he initiated contact with two (undercover agents posing as) underage girls, was told they were under-age, and repeatedly ask them to engage in oral sex.
The Court further found that Yost satisfied the "substantial step" element of the offense when he engaged in conduct which strongly corroborates the required culpability. Here, even though Yost never arrived at the agreed meeting place, he "crossed the line" when he made arrangements to meet, and took steps enticing the minors to engage in criminal sexual activity.