Haynes: Invited error where defendant appeals the very sentence he invited

In U.S. v. Haynes, No 12-12689 (Aug. 22, 2014), the Court held that the doctrine of “invited error” precluded Haynes from challenging his categorization as a “career offender” in a separate sentence on a separate case from the one for which the district court amended his sentence at resentencing. Haynes was charged with a total of five crimes, in two separate federal prosecutions. He pled guilty to all five crimes in one proceeding, and was sentenced at a single sentencing proceeding. After an unsuccessful appeal, Haynes filed a § 2255 motion, arguing that one of his sentences exceeded the statutory maximum, and further arguing that he was erroneously sentenced as a career offender. At his resentencing, the district court announced that it agreed that one sentence exceeded the statutory maximum, and defense counsel acknowledged that the court was “not going to touch the other case.” Defense counsel urged the court to impose a 322 month sentence. The district court imposed a 322-month sentence. On appeal, the Court refused to entertain the challenge to the career offender designation. The Court noted that defense counsel had remarked that the district court would “not . . . touch the other case,” and would not now fault the district court for abiding by counsel’s request. Further “defense counsel herself proposed the amended sentence lengths.” “Because Haynes appeals the very sentence he invited the resentencing court to impose, we decline to review the alleged errors.”

Therve: No abuse of discretion in granting mistrial after hung jury

In U.S. v. Therve, No. 13-11879 (Aug. 20, 2014), the Court affirmed a bribery conviction, rejecting the argument that the district court abused its discretion in denying a mistrial at the conclusion of a first trial after the jury was unable to agree on a unanimous verdict, with all but one juror in favor of finding Therve not guilty. The Court found that the following circumstances supported the judge’s decision to declare a mistrial: (1) the jury had deliberated to deadlock in two separate periods of deliberation, including one after receiving an Allen charge; (2) despite the two periods of deliberation, the jury said that had it had been split in the same way since the very beginning; (3) the judge believed the jury to be truthful in its assessment that it was hung; (4) the trial was short and straight-forward; and (5) the judge suggested that he thought that making the jury continue to deliberate after the second note following the Allen charge was coercive. The Court noted that it did not agree with the judge’s decision to reveal to the parties the jury’s numerical split (a split the jury revealed despite a specific instruction not to do so), but held that this did not render improper an otherwise sound decision to declare a mistrial.

Troy: Exclusion of evidence of prison conditions not reason for granting habeas relief from death sentence

In Troy v. Sec., Fla. Dep’t of Corrections, No. 13-10516 (Aug. 15, 2014), the Court affirmed the denial of habeas relief to a Florida death row inmate convicted of a 2001 murder. The Court rejected the argument that, at the penalty phase of the trial, the trial court erroneously testimony from a corrections officer about general conditions for those serving life sentences in Florida prisons. The Court held that, to date, Supreme Court precedent does not require a sentencer to consider this type of testimony. The Court noted that even if the State’s cross-examination of a witness suggested that Troy might use drugs in prison while serving a life sentence, the witness Troy wanted to call “could only speculate about possible incarceration outcomes.” The Court further noted that even if error occurred, it was harmless, because Troy was able to present considerable mitigating evidence, which the jury rejected in light of the aggravating evidence presented. [Martin, J., concurring, stated that de novo review, rather than AEDPA deference, applied to the issue, because it was unclear how Supreme Court precedent applied. However, the concurrence found no basis for granting habeas relief because it agreed with the majority that any error would have been harmless.]

Barsoum: Affirming Oxycodone trafficking conviction and sentence

In U.S. v. Barsoum, No. 13-10710 (Aug. 15, 2014), the Court affirmed the conviction and sentence of a defendant convicted of unlawfully dispensing Oxycodone out of several pharmacies. The Court rejected Barsoum’s challenge to the number of pills for which he was held accountable at sentencing. The Court found no clear error in the district court’s estimate of the number of pills, based on average frequency and the number of pills Barsoum sold over a one-year period. The Court also rejected the argument that statements should not have admitted as non-hearsay co-conspirator statements under Federal Rule of Evidence 801(d). The Court found that the testimony at issue did not relay any out-of-court statement and therefore was not hearsay. Further, the government had sufficiently established the existence of a conspiracy for purposes of Rule 801(d), and the statements at issue were made in furtherance of this conspiracy.

Payne: Alleyne error "harmless" because of uncontroverted evidence of brandishing

In U.S. v. Payne, No. 13-15699 (Aug. 15, 2014), the Court held that the district court committed Alleyne error when it imposed an 84-month mandatory minimum sentence based on its finding that a firearm was brandished during a bank robbery, but the error was harmless because of the “uncontroverted evidence” that a firearm was in fact brandished. Payne pled guilty to bank robbery and to possession of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). However, at sentencing, citing Alleyne, Payne objected to the imposition a mandatory consecutive minimum term of 84 months, under § 924(c)(1)(A)(ii), for the brandishing of a firearm. Overruling this objection, the district court relied on evidence at the sentencing hearing that a pistol was pointed at a bank teller during the robbery by one of the robbers, and imposed a consecutive 84-month sentence. The Court noted that because Payne did not admit to the brandishing of a firearm, the district court committed Alleyne error when it made its own brandishing finding. However, Alleyne error, like Apprendi error, was subject to “harmless error” review. Here, the evidence of the brandishing was uncontroverted. Hence, the error was harmless.

Hayes: Sentence of Probation Substantively Unreasonable for defendant who paid $600,000 in bribes

In U.S. v. Hayes, No. 11-13678 (Aug. 12, 2014) (2-1), the Court held that the district court imposed a substantively unreasonable sentence when it imposed a term of probation and no term of incarceration on a defendant who pled guilty to of giving $600,0000 in bribes to a state official to ensure that his company would continue to receive government contracts. The defendant’s guideline range was 135-168 months. The government recommended a substantial assistance downward departure, which would have resulted in a 57-71 months range. At sentencing, after noting the need to avoid unwarranted sentencing disparity, the district court sentenced Hayes to three years’ probation. Though acknowledging “the institutional superiority that district courts possess with regard to sentencing,” the Court vacated the sentence as substantively unreasonable. The Court found that the possibility of unwarranted sentencing disparity did not justify sentencing Hayes to probation, pointing out that of the similarly situated persons identified in a chart prepared by the probation office, the one most closely situated to Hayes – the state official who took his bribes – received a sentence of 78 months. Four of the five others received prison terms, and the only one who did not was responsible for just $300,000 in losses, half of the amount of money Hayes was ordered to pay in restitution.

Madison: No Batson Violation for Alabama Death Row Inmate

In Madison v. Comm., Ala. Dept. of Corrections, No. 13-12348 (Aug. 4, 2014), the Court affirmed the denial of habeas relief to an Alabama death row inmate sentenced to death for a 1985 murder, rejecting the claim of a Batson violation during jury selection. The Court reviewed deferentially the findings of the district court, after an evidentiary hearing, regarding the Batson findings. The Court noted that Madison had put forward a “strong” prima facie case of purposeful discrimination against black jurors. Nonetheless, the Court deferred to the district court’s findings that the reasons for striking black prospective jurors were race-neutral.

Wright: No Brady claim when defense had equal access to information

In Wright v. Sec., Fla. Dept. of Corrections, No. 13-11832 (Aug, 4, 2014), the Court affirmed the denial of habeas relief to a Florida death row inmate convicted of a 1983 murder. The Court rejected a Brady claim that statements by witnesses were not provided to the defense. The Court noted that a defendant cannot prevail under Brady where he had ‘equal access” to the information forming the basis of the claim. Here, the defense had access to the information in the statements. The Court also rejected an ineffective assistance of counsel claim regarding a “glass vase”, pointing out that defense counsel effectively pointed out that the prosecutor had misstated a witness’ testimony.

Mendoza: Counsel not ineffective in investigating mitigating evidence

In Mendoza v. Sec., Fla. Dept of Corrections, No. 13-14968 (July 31, 2014), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1992 murder. The Court rejected the argument that trial counsel performed a deficient investigation of mitigating evidence, noting that counsel “thoroughly” investigated Mendoza’s mental health, and hired three experts to evaluate Mendoza’s mental health. The Court also rejected the argument that the defense should have put on evidence that Mendoza had a substance abuse problem, pointing out that this argument is a “two-edged sword.”

Roy: Defense Counsel's Absence from Trial during presentation of inculpatory evidence is Cronic error

In U.S. v. Roy, No. 12-15093 (Aug. 5, 2014) (2-1), the Court reversed the defendant’s convictions for possession of child pornography, holding that the absence of defendant’s trial counsel during a critical stage of trial when inculpatory evidence was admitted against him violated the Sixth Amendment. At Roy’s trial, evidence admitted to prove that Roy knowingly possessed photographs of a minor engaged in sexually explicit conduct was presented to the jury during his lawyer’s absence from the courtroom. The Court explained that “[t]he absence of counsel during the presentation of inculpatory evidence used by the government to convict the defendant eliminates the opportunity to decide whether to lodge an objection and how to frame an objection, as well as the ability to conduct cross-examination.” The Court held that this constituted error under U.S. v. Cronic. Pointing out that “Cronic error is structural error,”the Court noted the practical difficulties of discerning the harmlessness of the error in the denial of counsel during the presentation of inculpatory evidence. The Court reversed the convictions without engaging in harmless error analysis. The Court held that even though defense counsel did not object once he returned to the courtroom, Cronic error is not subject to plain error review, and defense counsel could not have known what evidence he missed, as he was absent. The Court rejected the dissent’s argument that the Cronic error did not affect all the counts of conviction, pointing out that the counts in this case were “interrelated.” The Court also rejected the argument that defense counsel’s absence was “opportunistic.” “Our confidence in the integrity of lawyers, who are admitted to practice in our courtrooms as officers of the Court and bound by rules of professional responsibility, satisfies us that our decision today will not go so far as to motivate them to place their licences to practice law in jeopardy by, as the dissent suggests, strategically slipping out of the courtroom when the judge is not looking and when they think inculpatory evidence is coming.”

Taylor: No habeas relief because no Due Process violation in exclusion of defense evidence

In Taylor v. Sec., Fla. Dep’t of Corrections, No 12-12112 (July 28, 2014), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1988 murder. The Court rejected the argument that Taylor’s due process rights were violated when the trial court did not allow him to present evidence that the murder victim occasionally used or purchased crack cocaine, which would have corroborated Taylor’s defense that the victim consented to sex on the night of her murder. The Court noted that the testimony had no direct bearing on the issue of sexual consent, and would not have materially supported Taylor’s defense. The Court also rejected the argument that defense counsel was ineffective for having Taylor reenact the crime on the witness stand. The Court noted that Taylor did not in fact physically reenact the crime, and counsel’s tactical choices were not constitutionally deficient.

Watkins: Husband's limited Consent does not vitiate wife's full consent

In U.S. v. Watkins, No. 12-12549 (July 28, 2014), the Court held that Georgia v. Randolph, which held that, under the Fourth Amendment, the contemporaneous objection of a person who shared common authority over a home prevented a search when one person with authority had consented, the fact that defendant had given only a limited consent to a search of his computers did not vitiate the valid, full consent that his wife gave to search these computers – a search that uncovered child pornography images. The Court noted that the defendant did not voice any objection when his wife consented to the search. His actions fell “well outside Randolph’s conception of an objection.” The Court pointed out that Randolph created only a “narrow exception” to the doctrine that a person with common authority over premises has authority to consent to a search.

DeBruce: Complete omission of mitigating evidence was prejudicial to Alabama death row inmate

In DeBruce v. Comm., Ala. Dep’t of Corrections, No. 11-11535 (July 15, 2014), the Court (2-1) (Tjoflat, J., dissenting) granted habeas relief to an Alabama inmate sentenced to death for a 1991 murder. The Court found that DeBruce’s trial counsel at the penalty phase of his case was constitutionally ineffective in limiting his mitigation investigation to speaking with DeBruce and his mother and not to further investigate DeBruce’s mental health and background. The Court noted that counsel did not have a strategic reason for not doing the mitigation work, and explained that he got into the case “too late” to do so. The Court noted that DeBruce’s competence to stand trial was not a basis for a strategic decision to forego pursuit of mitigation evidence at the penalty phase. Trial counsel also failed to pursue the inconsistencies between DeBruce’s mother’s account of his being a successful student and information that he had in fact dropped out of school in the seventh grade. The Court found that the failure to investigate prejudiced DeBruce, because the sentencing jury heard nothing of the daily beatings DeBruce suffered at the hands of his older sister, his resistance to joining gangs despite their assaults and intimidation, the pervasive violence in his neighborhood, or his struggles in school and his low-average intelligence. The “complete omission” of this type of evidence was prejudicial.

Jeanty: Alleyne not basis for 2241 habeas relief

In Jeanty v. Warden, FCI-Miami, No. 13-14931 (July 15, 2014), the Court held that a federal habeas petitioner under 28 U.S.C. § 2241 could not rely on Alleyne v. U.S. to attack the district court’s failure to submit to a jury the question of whether he had a prior conviction that qualified him for a mandatory minimum sentence. The Court explained that the Supreme Court had not made Alleyne apply retroactively on collateral review. Further, the ten-year sentence fell below the statutory 40-year maximum for Jeanty’s drug trafficking crime. Finally, the Alleyne Court took pains to point out that its holding did not upset its previous ruling in Almendarez-Torres that the fact of a prior conviction is not an element that must be found by a jury.

Rodriguez: Conjugal visits not material

In Rodriguez v. Sec., Fla. Dep’t of Corrections, No. 11-13273 (June 30, 2014), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for three 1984 murders. The Court rejected Rodriguez’ claim that detectives testified falsely about conjugal visits that a cooperating State witness was allowed. The Court agreed with the Florida courts that this evidence “lacked materiality.” The Court also noted the defense’s “withering cross-examination” of this witness. The Court also rejected a claimed Brady violation involving the withhold of two letters that would have cast doubt on a prosecution witness. The Court concluded that the letters were “not material.”

Lambrix: Not error to decline to appoint habeas counsel for futile claim

In Lambrix v. Sec., Fla. Dep’t of Corrections, No. 13-11917 (June 26, 2014), the Court affirmed the denial of appointment of counsel to a Florida death row inmate whose prior habeas petitions had been denied, and rejected his argument that his latest petition was not futile under Martinez v. Ryan. The Court noted that Martinez held that there was no procedural default when there was cause for a habeas petitioner’s prior failure to raise an ineffective assistance of counsel claim. Lambrix, however, did not fail to previously raise an ineffective assistance of counsel claim – he did so, unsuccessfully. For this (and other reasons) his current claim was futile, and the district court did not err in declining to appoint counsel to pursue a futile claim.

Malone: Alleyne error is harmless

In U.S. v. Malone, No. 12-15092 (June 26, 2014), the Court affirmed the sentence imposed on a defendant convicted of drug trafficking and failure to appear at trial. Toward the end of a lengthy jury trial in1990, Malone did not show up for trial. The trial continued in his absence, and the jury convicted Malone of a drug conspiracy. Twenty-two years later, in 2012, Malone was extradited from Ecuador, and brought for sentencing for his earlier drug trafficking conspiracy, and for a failure to appear charge – to which he pled guilty. The district court imposed a 240-month mandatory minimum sentence on the 1990 drug conspiracy conviction, based on its finding that the offense involved more than 5 kilos of cocaine and therefore triggered this mandatory minimum. The district court also imposed a consecutive 22-month sentence for Malone’s failure to appear at trial. Citing Alleyne, the Court agreed with Malone that, in light of the absence of jury findings regarding drug quantity at the 1990 trial, it was error for the district court to impose a sentence based on its own findings as to drug quantity. However, the error was harmless, because Malone had stipulated at the 1990 trial to a quantity greater than 5 kilograms. The Court rejected the argument that there was a conflict of interest in representation in light of defense’s counsel representation of a co-defendant at the trial in 1990. The Court noted Malone’s failure to demonstrate any alternative defense strategy that he could have pursued. The Court rejected as “invited error” Malone’s claim on appeal that, because his punishment for his failure to appear was already accounted for by a Guidelines sentence enhancement, he should not have been subject to a consecutive sentence for this failure. The Court noted that in the trial court Malone’s counsel stated that Malone was subject to “additional” punishment on account of the failure to appear. Finally, the Court rejected Malone’s complaint about an incomplete appellate record, pointing out that he was responsible, by having stayed on the run for 22 years, for the record being lost in that long interval.

Insignares: Habeas Petition after new judgment is not "second or successive"

In Insignares v. Sec., Fla. Dep’t of Corrections, No. 12-12378 (June 23, 2014), the Court affirmed the denial of habeas relief to a Florida inmate convicted of attempted murder. The Court agreed with Insignares that because the State trial court entered a new sentence, and therefore a new judgment, after Insignares filed a first federal § 2254 habeas petition, his subsequent federal § 2254 habeas petition which challenged the new judgment was not “second or successive” for purposes of AEDPA limitations. Turning to the merits, the Court rejected Insignares’ ineffective assistance of counsel claim, finding the representation to be neither deficient, nor to have prejudiced his defense.

Ramirez-Gonzales: enticing a child for indecent purposes is "sexual abuse of a minor" for Guidelines purposes

In U.S. v. Ramirez-Gonzalez, No. 13-13703 (June 23, 2014), the Court rejected the argument that a defendant’s prior Georgia conviction for enticing of a child for indecent purposes did not qualify as “sexual abuse of a minor” for purposes of a 16-level enhancement under USSG § 2L1.2, for a defendant convicted of illegal re-entry into the United States. The Court explained that the Georgia offense fell within the definition of “sexual abuse of a minor” that includes “both physical and nonphysical misuse and maltreatment of a minor for the purposes of sexual gratification.” The Court rejected a substantive reasonableness challenge to the sentence, pointing out that the district court issued a considerable downward variance to negate the potential sentencing disparities that could have resulted from the 16-level enhancement on the facts of the case, and the resulting 52-month sentence was below the Guidelines range of 70-87 months, and well below the 20-year statutory maximum.

Doughtery: Flight in Colorado one week after Georgia robbery not "immediate"

In U.S. v. Dougherty, No. 12-16540 (June 20, 2014), the Court reversed the imposition of a six-level sentence enhancement for assaulting an officer during “immediate flight” from an offense, but otherwise affirmed the 428-month sentence on defendants who went on a Georgia crime spree, and fled to Colorado, where they fired on chasing police before being apprehended with cash from a bank robbery, and firearms and ammunition, in the trunk of their vehicle. The Court noted that USSG § 3A1.2 authorizes the imposition of a six-level enhancement if a defendant is accountable for the assault on a law enforcement officer during “an immediate flight” from an offense. Dougherty, however, assaulted an officer in Colorado one week after a bank robbery in Georgia. His assault therefore was no during an “immediate flight” from the robbery, and the six-level enhancement did not apply. The Court rejected the challenge to the imposition of a two-level sentence enhancement based on substantial risk of death or serious bodily injury during flight under § 3C1.2. The Court pointed out that this enhancement (unlike § 3A1.2) did not require immediacy. And each defendant could held accountable for this conduct: one defendant drove recklessly, another fired shots at pursuing police officers, and a third pointed a pistol at an officer. The Court rejected one defendant’s argument that his sentence should not have been enhanced under § 3C1.1 on account of his attempt to flee from jail in Colorado. The Court found the enhancement applicable because the escape occurred before trial or sentencing. Finally, the Court rejected substantive reasonableness challenges to the 428-months sentences, noting the “compelling” reasons given by the district court for its upward departure: the numbers of firearms involved, the number of civilians put at risk, and the defendants’ significant criminal history.