Smith: Consent to search were police were not acting "flagrantly"

In U.S. v. Smith, No. 10-15929 (July 23, 2012), the Court rejected the challenge by a defendant convicted of distributing child pornography that the police violated his Fourth Amendment rights when they entered and searched his house without a warrant.
The police, suspecting that Smith had child pornography on his laptop consumer, went (without a warrant) to his house in Sebastian, Florida. They knocked loudly on the door. No one answered. A neighbor told them that "Smith was feeling some sort of depression." To ensure Smith’s well-being, the police entered his house through an unlocked sliding glass back door, with guns drawn, pointing down. Smith was laying naked on an inflatable mattress. The police holstered their weapons. Smith asked them to step outside while he got dressed. The police stepped outside, where Smith joined them. The police then discussed whether Smith had child pornography in his residence. Smith offered to show police his laptop. The police followed Smith inside the house, where they saw a computer with an active peer-to-peer program, downloading and uploading child pornography. Smith later that day confessed to possessing child pornography.
Prior to trial, Smith moved to suppress his confession and all evidence seized from his computers as "fruits of the poisonous tree" – the illegal search of his house. The district court denied the motion to suppress.
Affirming, the Court assumed arguendo that the officers’ "welfare check" entry into Smith’s home violated the Fourth Amendment. However, the Court found that the subsequent consent to search was voluntary. The Court recognized that the record did not show how much time elapsed between the entry and the consent. But the intervening circumstances – the fact that the police left the house when Smith asked to get dressed, and that there was no evidence of coercion (although police did not inform Smith that he could refuse consent to a search), indicated that there was no "flagrancy" in the police’s conduct. The Court noted that Smith had presented no evidence to rebut the officers’ claims that they went into the house to check on his welfare. Therefore, the search did not violate the Fourth Amendment.

Glover: Defendant not eligible for crack Amendment reduction

In U.S. v. Glover, No. 12-10580 (July 11, 2012), the Court held that a defendant was ineligible for a sentence reduction pursuant to Amendment 750 of the Sentencing Guidelines which, effective, November 1, 2011, reduced offense levels for crack cocaine offenses.
The Court rejected the government’s argument that the appeal was untimely, pointing out that Glover’s pro se motion for reconsideration of the district court’s denial of his motion for sentence reduction under 18 U.S.C. § 3582(c)(2) tolled the deadline for filing a notice of appeal.
Turning to the merits, the Court noted that under the Guideline commentary to U.S.S.G. § 1B1.10, a defendant can only receive a sentence reduction based on a Guideline amendment if the amendment "actually lowers the Guideline range." Glover’s original sentence was based on a mandatory minimum that "trumped" the Guidelines range. Therefore he was not eligible for a reduction.
The Court also rejected Glover’s argument that he was eligible for a sentence reduction because his sentence was based on a sentence reduction for "substantial assistance." The Court determined that Glover’s original Guidelines range was the statutory maximum, not the sentence after reduction for substantial assistance. Therefore, the crack cocaine Amendment did not actually lower his Guideline range and make him eligible for a sentence reduction.

Early: Affirming upward sentence variance

In U.S. v. Early, No. 10-15537 (July 11, 2012), the Court affirmed a 210-month sentence on a defendant convicted of robbery of two banks using fake bombs.
The Court noted that the Guidelines range was 79-97 months. The Court nonetheless rejected a substantive reasonableness challenge to the 210-month sentence, pointing out that Early had spent much of his adult life in prison, for "multiple" offenses. The Court also noted that Early’s use of fake bombs created "terror" for tellers and customers. In addition, the sentence was below the 900-month statutory maximum for the offenses.
[Concurring, Martin, J., noted the Eleventh Circuit’s failure to exercise "similar deference" when reviewing sentences in which the district court granted a downward variance.]

Sochor: Not Prejudiced by Counsel's Ineffectiveness

In Sochor v. Sec. Dep’t of Corrections, No. 10-14944 (June 27, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1981 murder.
The Court found that even if Sochor’s counsel was ineffective at the penalty phase, Sochor was not prejudiced by this ineffectiveness. The Court noted that the aggravating circumstances were that Sochor chocked his victim to death with his bare hands, causing a slow and painful death. In addition, the murder was in the course of kidnaping. The aggravating circumstances so outweighed the mitigating circumstances not presented regarding Sochor’s impairment at the time of the murder, and his manic depressive personality. Moreover, the jury heard evidence at the penalty phase of Sochor’s severe beatings as a child. Consequently, there was no reasonable probability of a different outcome.

Rojas: Confirming Dorsey on FSA

In U.S. v. Rojas, No 10-14428 (July 2, 2012), the Court, having held the issue in abeyance en banc, held that in light of the Supreme Court’s recent decision in Dorsey v. U.S., the more lenient mandatory minimums of the Fair Sentencing Act apply to all defendants sentenced after August 3, 2010, when the Act took effect. The Court therefore remanded the cases for re-sentencing consistent with Dorsey.

Daniels: Government need not show defendant knew age of minor prostitute

In U.S. v. Daniels, No. 10-14974 (July 2, 2012),
the Court affirmed the convictions and sentence of a defendant convicted of inducing a minor to engage in prostitution in violation of 18 U.S.C. § 2422(b) and transporting an individual in interstate commerce with the intent that she engage in prostitution, in violation of 18 U.S.C. § 2421-22.
The Court rejected the argument that the mere fact that a person came to work for the defendant as a prostitute did not suffice to show that he “induced” prostitution for purposes of § 2422(b). The Court noted that induce merely means to cause.
On an issue of first impression, the Court held that the jury need not be instructed that, in order to establish a § 2422(b) violation, the government must prove that a defendant knew that a victim had not attained the age of 18 . The Court adopted Justice Alito’s view in his concurring opinion in Flores-Figueroa v. U.S., that context determines whether a mens rea applies to an element of the offense, and the view of six circuits that had addressed the issue. The context here was Congress's protection of minors. “A defendant such as Daniels who lures and encourages children into these activities does so at this own peril, regardless of what the victim says [about her age] or how she appears.”
Turning to sentencing, the Court rejected the argument that it was unreasonable to run Daniels’ sentences consecutive to an undischarged term of 420 months imprisonment for another sentence in Michigan. The Court noted that the conduct in Michigan was not part of the relevant conduct for the latest offense, and the district court therefore acted within its discretion in imposing a consecutive 78-month sentence. The Court also affirmed the imposition of a 25-year term of supervised release.

Haile: No Constructive Amendment

In U.S. v. Haile, No. 10-15965 (June 29, 2012), the Court affirmed drug trafficking and firearm convictions, in a case arising out of a reverse sting involving five kilos of cocaine, 1,000 kilos of marijuana, and several firearms.
The indictment incorrectly conflated the "during and in relation to" and possesses "in furtherance of" elements of a violation of 18 U.S.C. § 924(c). The Court rejected the defendants’ challenges based on this error. The Court noted that "minor deficiencies" in an indictment do not render it constitutionally deficient, and here the indictment expressly referred to § 924(c), thereby putting the defendants on notice of the charge. In addition, the trial court’s decision to drop part of the language of the indictment and to instruct the jury only on the "possesses in furtherance" prong of the statute was not an impermissible amendment, because the dropped "during and in relation to" was not necessary for a conviction.
The Court also rejected the argument that the trial court incorrectly failed to instruct the jury that it had to find that the defendants knew that the gun they possessed had the characteristics of a machine gun. The Court explained that, under U.S. v. O’Brien, the government was required to prove that the firearm was a machine gun – this fact was not a mere sentencing factor. However, O’Brien did not require proof that the defendant knew that the gun was a machine gun.
The Court held that 18 U.S.C. § 922(k), which criminalizes possession of a firearm with an obliterated serial number, requires proof that the defendant knew that the serial number was obliterated. The Court agreed with the defendant that the evidence was insufficient to prove this knowledge. While the defendant discussed guns in general before the arrest, and the gun was found in his flatbed truck, the government put forth no evidence that he actually possessed the gun for any significant length of time.
The Court rejected the argument that the trial court erred in refusing to instruct the jury that the defendant should be acquitted on account of the "outrageous government conduct" in connection with the reverse sting operation. The Court noted that there was no precedent holding that outrageous government conduct could constitute a defense for a jury to consider; consequently, the trial court did not abuse its discretion.
Turning to sentencing, the Court rejected the Eighth Amendment, "substantive unreasonableness," and "sentencing manipulation" challenges to a within-guideline sentence of 438 months.

Merrill: Fraudulent Chinese Ammunition Sales

In U.S. v. Merrill, No. 11-11432 (June 27, 2012), the Court affirmed convictions for conspiracy to commit false statements, major fraud, and wire fraud against the United States, in violation of 18 U.S.C. § 371, and for major fraud and wire fraud, in violation of 18 U.S.C. § 1031, 1343. The charges arose out of sales of Chinese ammunition to the United States Army in contravention of a contract that prohibited the delivery of weapons acquired, directly or indirectly, from a Communist Chinese military company.
The Court rejected the argument that the sale did not violate the contract because the ammunition had been acquired from China before the United States law prohibited purchases of ammunition from Chinese companies. The Court noted that the prohibition encompassed pre-prohibition ammunition.
The Court held that the trial court did not err when it excluded evidence, proffered by the defense, that the government knew the Chinese origin of the ammunition it was purchasing. Citing the holding in U.S. v. Neder, 197 F.3d 1122 (11th Cir. 1999) that a false statement can be material even if the decision maker knew it was false, the Court rejected Merrill’s argument that "a lie is only a lie if it works."

The Court rejected the argument that the district court should not have admitted admissions made during "plea negotiations," pointing out that Merrill had not been charged with any crimes at the time of his discussions with government officials, and that no specific promises of leniency were made.
The Court rejected the argument that the government should have produced government agents’ handwritten notes taken during interviews of Merrill. The Court held that agents’ accounts of Merrill’s testimony were not "transcriptions of Merrill’s words," and therefore not subject to production under Fed. R. Crim. P. 26.2(a).
The Court held that the district court did not err in declining to grant a defense witness use immunity, pointing out that only the Executive Branch can grant use immunity.

Booker: No instruction required when defendant is eligible for parole

In Booker v. Sec., Fla. Dep’t of Corrections, No. 10-14966 (June 19, 2012), the Court denied habeas relief to a Florida death row inmate.
Booker pointed out that during deliberations over whether to sentence him to death, the jury asked whether, if it were to impose a sentence of life with the possibility of parole after serving 25 years, the defendant would get credit for time served. The trial court declined to answer the question. The jury then voted to sentence Booker to death.
In his habeas petition, Booker argued that the district court should have instructed the jury that, because of other consecutive sentences, he was "functionally" barred from ever being paroled. The Court recognized that in Simmons v. South Carolina, the Supreme Court held that in some circumstances a jury must be informed of a defendant’s parole ineligibility. The Court held that Simmons did not clearly govern when, as with Booker, the defendant is statutorily eligible for release on parole.

Jimenez: No "grouping" for illegal reentry and firearm possession

In U.S. v. Jimenez-Cardenas, No. 11-14651 (June 22, 2012), the Court rejected the argument that the district court misapplied the Sentencing Guidelines when it declined to group Jimenez’s convictions for illegal reentry under 8 U.S.C. § 1326(a) with his 18 U.S.C. § 922(g)(5) firearm convictions.
The grouping rules, U.S.S.G. § 3D1.2, provide that offenses should be grouped together when they involve substantially the same harm. But different "societal interests" are harmed by illegal reentry and illegal possession of a firearm. The offenses involve different conduct. No aspect of one offense served as the basis for a sentence enhancement of the other offense.

Pena: Deficient MARPOL survey conviction affirmed

In U.S. v. Pena, No. 10-15928 (June 20, 2012), the Court held that the United States has jurisdiction to prosecute a surveyor for violating statutes and regulations implementing the International Convention for the Prevent of Pollution from Ships (MARPOL), in the inspection of a ship under the flag of another nation, docked in the United States.
Reviewing a challenge to the sufficiency of the indictment raised for the first time on appeal, the Court found no actual prejudice from any deficiency in the indictment. The Court rejected the argument that the indictment failed to adequately describe the nature of the ship "survey" MARPOL requires.
The Court also rejected a challenge to the sufficiency of the evidence, pointing out that Pena admitted that he not tested an oily water separator because he knew the separator was not working, yet issued a certificate which noted no deficiencies.

House: Affirming Unconstitutional Seizure Convictions

In U.S. v.House, No. 10-15912 (June 20, 2012), in a 70-page opinion, the Court affirmed some convictions and reversed others, in a case involving a former officer of the Federal Protective Service pulling over motorists for unwarranted traffic stops in violation of the Fourth Amendment right to be free from unreasonable seizures, in violation of 18 U.S.C. § 242, and filing false incident reports, in violation of 18 U.S.C. § 1001.
The Court rejected challenges to the sufficiency of the evidence regarding the § 242 violations. The Court found that the government presented testimony establishing that House lacked probable cause to stop the motorists. In addition, House acted "under color of law," because he was wearing his uniform, and identified himself as a federal officer.
The Court also rejected challenges to the sufficiency of the evidence supporting the false statement convictions, citing the testimony of House’s supervisor that incident reports are use to initiate criminal prosecutions, and it is "very important" that a report "include truthful information in relation to all of the facts of the case."
The Court held that a jury instruction that told the jury that it could find a seizure to be "unreasonable" solely because the officer did a traffic stop without jurisdiction or authority was erroneous. However, the error was harmless as to a number of counts. As to these counts, the jury convicted House of making false incident reports, thus rejecting House’s view that he had probable cause to make the traffic stops.

Welch: Consent to search voluntary

In U.S. v. Welch, No. 10-14649 (June 13, 2012), the Court rejected a Fourth Amendment challenge to a search, and held that Welch’s prior conviction for robbery qualified a "violent felony" for purposes of the Armed Career Criminal Act ("ACCA").
Looking for a suspect in an armed robbery, two days after the robbery, but without search or arrest warrants, police knocked on the door of an apartment where the suspect was said to reside, entered with guns drawn and found Welch (not the suspect) "smoking a ‘joint’ and minding a baby." Police asked Welch if they could search his apartment. He initially refused, but a few minutes later consented. The police found a pistol. Welch admitted that it was his.
Rejecting Welch’s argument that the pistol and Welch’s admission were the fruits of an unlawful search, the Court found that Welch had voluntarily consented to the search. The Court noted that Welch "must not have left coerced into consenting when [police] first asked, because he declined to consent... A person who actually says ‘no’ has not been coerced into saying ‘yes.’"
The Court found that Welch consented after police told him that they would get a search warrant and this "would take a while." Welch’s consent was not coerced, just constrained, by having to place his bet on one of two poor alternatives: either police would get the search done quickly and fail to notice his pistol, or if he put them to the trouble of getting a search warrant, they would search more thoroughly because he had inconvenienced them.
Turning to sentencing, the Court recognized that at the time of Welch’s prior Florida robbery, the Florida courts were divided as to whether a "snatching" amounted to robbery. But even assuming only a "snatching," the Court found that a "victim’s natural reaction is likely to be to try to hold on to his or her money or property, leading in many cases to serious injury." The offense therefore qualified under ACCA’s "residual clause," which provides that prior felony is a "violent felony" if it involves a serious risk of physical injury.

Lucas: Reservations about Death Penalty remains grounds for peremptory challenges

In Lucas v. Sec. Dep’t of Corrections, No. 08-15761 (June 8, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1976 murder.
The Court found that Lucas had failed to raise in state court proceedings his claim that the prosecution’s failure to disclose a rebuttal witness violated his confrontation clause rights. This claim was therefore procedurally barred. Even on the merits, the claim would have failed, as rebuttal witnesses are not subject to the pretrial disclosure requirement.
The Court also rejected the claim that counsel was ineffective for failing at the sentencing phase to negate the application of the heinous, atrocious and cruel aggravator. The Court noted that the evidence of the "beating" of the victim made it unlikely that additional evidence would have changed the outcome.
The Court rejected the challenge to the prosecution’s use of peremptory challenges to remove jurors who expressed reservations about the death penalty. The Court noted the absence of "clearly established" Supreme Court caselaw barring the use of peremptory challenges based on opinions regarding the death penalty.

Diaz: Inmate in Federal Prison not "in custody"

In Diaz v. State of Florida Fourth Judicial Circuit, No. 10-15202 (June 11, 2012), the Court affirmed the denial of habeas relief to a defendant who had completely served the sentence imposed by the state court and therefore was no longer "in custody."
Diaz was subject to two sentences, one imposed in federal court to run concurrently to any sentence imposed in state court, and one imposed in state court, to run consecutively and prior to the federal sentence. When Diaz finished serving his state sentence in state custody he was transferred to federal custody to finish serving his federal sentence. When in federal custody, Diaz filed a habeas petition challenging the constitutionality of his state convictions.
The Court held that because Diaz had fully served the state sentence he was no longer "in custody" for habeas purposes. The Court distinguished other cases in which an inmate was allowed to challenge a prior conviction when he serving the latter of two consecutive sentences imposed by the same sovereign. In those cases, an error in the first sentence would delay the start of the latter sentence. But here, Diaz was serving his federal sentence, and the federal government is "generally not required to credit any portion of a prisoner’s time served in state custody."

Cortes-Salazar: Padilla-Reyes remains binding

In U.S. v. Cortes-Salazar, No. 11-11428 (May 30, 2012), the Court held that a prior conviction for a "lewd assault act," in violation of Fla. Stat. § 800.04, qualified as "crime of violence" under U.S.S.G. § 2L1.2, and therefore supported the 16-level enhancement the district court imposed on a defendant convicted of illegal re-entry after deportation.
The Court noted that it had previously held in U.S. v. Padilla-Reyes that a prior conviction under Fla. Stat. § 800.04, with or without victim contact, qualified as an "aggravated felony" for purposes of § 2L1.2 and therefore supported a 16-level enhancement. The Court recognized that the Guideline definitions had changed since Padilla-Reyes. The Court also noted a number of cases decided subsequent to Padilla-Reyes. However, the Court rejected the defendant’s arguments that these changes in the law undermined the viability of Padilla-Reyes, and determined, to the contrary, that Padilla-Reyes "remains binding precedent."

Kendrick: No vindictive prosecution after acquittal

In U.S. v. Kendrick, No. 11-12620 (June 1, 2012), http://www.ca11.uscourts.gov/opinions/ops/201112620.pdfthe Court rejected challenges to a conviction for alien smuggling for commercial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii).
Kendrick had been acquitted, at a prior trial, of importing 900 pounds of marihuana into the United States. In his defense at this earlier trial, Kendrick testified that he went to the Bahamas not to bring back marihuana, but aliens. The government thereafter indicted Kendrick of smuggling illegal aliens, and he was convicted. On appeal, Kendrick claimed that he was the victim of vindictive prosecution after his acquittal. Rejecting this claim, the Court noted that the new indictment did not state heightened charges (the maximum penalties for alien smuggling are less than marihuana importing). Moreover, the government explained that until Kendrick admitted at trial having smuggled aliens, it did not have sufficient evidence to charge Kendrick for this offense.
The Court also rejected Kendrick’s challenge to the sufficiency of the evidence, pointing out, inter alia, that Kendrick fled the Coast Guard when a vessel approached his vessel.
The Court also affirmed the district court’s exclusion of evidence that Kendrick had been acquitted of the prior marihuana charge. The Court pointed out that an acquittal is hearsay. The Court also noted that the marihuana charge was irrelevant to alien smuggling.
The Court also rejected the argument that a portion of the prosecutor’s closing argument in the first trial should have been admitted at the second trial. In his closing, the prosecutor stated that the $25,000 Kendrick received was for the risk of smuggling drugs, not aliens. The Court found that this evidence would have “confused” the jury.

Evans: Brain Damage evidence is basis for habeas relief

In Evans v. Sec. Dep’t of Corrections, No. 10-14920 (May 23, 2012) (2-1) (Edmondson, J., dissenting), the Court reversed the denial of habeas relief to a Florida inmate sentenced to death for a 1998 murder.
The Court found that the Florida Supreme Court had unreasonably discounted the mitigation evidence that Evans’ trial counsel failed to present at his sentencing hearing. The evidence would have established Evans’ brain damage dating from an accident he had as a child. The Court pointed out that in Porter v. McCollum, the Supreme Court held that unpresented mitigating evidence must be considered by a reviewing court from the point of the view of the jury that never heard the evidence. The Florida Supreme Court failed to consider the possibility that competent counsel could have used the brain damage evidence in mitigation.

Perez: Lafler did not "break new ground"

In In Re Michael Perez, No. 12-12240 (May 25, 2012), the Court held that a § 2255 petitioner was not entitled to raise a claim of ineffective assistance of counsel in a second or successive § 2255 motion. Perez claimed that Missouri v. Frye and Lafler v. Cooper were “new rules of constitutional law” upon which he could rely in a second or successive § 2255 petition. The Court, however, found that these cases did not “break new ground,” because in Hill v. Lockhart the Supreme Court had already extended Strickland’s test for ineffective assistance to the plea bargaining process. In addition, the fact that the Supreme Court decided these two cases on habeas petitions eliminated any doubt as to whether they broke new ground, because, under AEDPA, habeas petitioners must show a decision contrary to “clearly established law” in order to prevail.

Schneider: Florida False Imprisonment is Violent Felony

In U.S. v. Schneider, No. 10-15863 (May 24, 2012), the Court held that a prior conviction for false imprisonment in violation of Fla. Stat. § 787.02(1)(a), qualifies as a violent felony for purposes of the Armed Career Criminal Act.



The Court rejected the government’s argument that the defendant waived the issue by failing to object to the underlying facts set forth in the PSI. The Court noted that while Schneider’s objection to the factual paragraph of the PSI focused on a legal argument rather than setting out any factual dispute, he did state that false imprisonment includes “nonviolent” conduct. In addition, the premise of the argument at sentencing was that the factual allegations did not suffice to support the ACCA enhancement.



The Court noted that in false imprisonment cases in which a defendant “secretly” – i.e., by ruse, abducted another person, a risk of injury can result once the victim might try to resist or escape. The Court analogized the risk to the risk of injury caused by a vehicular flight, which the Supreme Court found to be a violent felony in Sykes v. U.S. The Court rejected the defendant’s analogy to a perpetrator’s failure to report for scheduled weekend confinement, which Chambers v. U.S. held did not qualify as a violent felony.