Mays: Johnson and Descamps apply retroactively to first habeas petition

In Mays v. U.S., No. 14-13477 (March 29, 2016), the Court held that Descamps and Johnson apply retroactively to a first-habeas petition defendant sentenced to a higher mandatory sentence based on prior convictions under the Armed Career Criminal Act (ACCA), and therefore ordered resentencing. One of Mays’ prior qualifying convictions was an Alabama third-degree burglary. In U.S. v. Howard, the Court had already held, post-Descamps, that this Alabama burglary did not qualify under ACCA’s enumerated clause. Mays was sentenced pre-Descamps. The Court found that Descamps did not announce a new rule, “but was simply reaffirming” an existing approach. Thus, under Teague v. Lane, Descamps applied retroactively, and the Alabama burglary did not qualify under the enumerated clause. Turning to whether the Alabama burglary qualified under ACCA’s residucal clause, the Court held that Johnson, which held the residual clause to be unconstitutionally vague, applied retroactively because it was a new substantive rule of constitutional law. Citing Schriro v. Summerlin, the Court noted that new substantive rules include decisions that “place particular conduct or persons covered by the statute beyond the State’s power to punish.” The Court recognized that in In re Rivero, it had held that Johnson did not apply retroactively to a defendant who filed a second and successive habeas petition. But Mays was on his first habeas petition, and therefore does not require a ruling by the Supreme Court that Johnson is retroactive. Further, Rivero found that Johnson announced a new substantive rule of constitutional law. Accordingly, Johnson was retroactively applicable to a first habeas petition.

Taylor: "Production" and "Use" of Devices are distinct

In U.S. v. Taylor, No. 14-13288 (March 28, 2016), the Court rejected the argument that the imposition of the mandatory two-year sentence for aggravated identity theft in violation of 18 U.S.C. 1028A did not preclude the imposition of an additional two-level enhancement under U.S.S.G. § 2B1.1(b)(11)(B)(i) for the “production” of an authorized access device. The Court explained that while § 2B1.6 of the Guidelines precluded the imposition of an additional Guideline enhancement for the “use” of a means of identification, this double-counting preclusion did not apply to the “production” of such a device. The Court reasoned that producing unauthorized devices creates more opportunities for prohibited conduct than mere use of a pre-existing device. Taylor’s scheme involved submitting false identities to banks in order to cause them to produce credit cards. The Court held that, in so doing, Taylor “willfully caused” the production of the credit cards, and was accountable for their “production” even though the cards were manufactured by the banks, an innocent third party.

Baston: Foreign Commerce power to apply criminal law extraterritorially is as broad as Interstate Commerce power

In U.S. v. Baston, No. 14-14444 (March 24, 2016), the Court affirmed the convictions and sentence of a defendant convicted of sex trafficking by force, and money laundering the proceeds of this sex trafficking, and, on a government cross-appeal, reversed the district court’s decision not to award restitution to an Australian sex-trafficking victim. On plain error review, the Court found no error in the district court’s response to the jury’s supplemental question during deliberations, that asked whether it would be illegal to transfer funds if prostitution is legal in Australia and money was made there by those means. The Court found that this question asked about money laundering, not sex trafficking. The district court’s answer must have been satisfactory, because the jury asked no further questions after receiving the supplemental instruction. The Court also rejected Baston’s challenge to the sufficiency of the evidence regarding whether his conduct was “in or affecting” interstate commerce. Reviewing the argument for plain error because Baston failed to raise this specific challenge in the district court, the Court found that even if Baston trafficked this victim only in Florida, his use of phones, the Internet, hotels and buses facilitated his trafficking, so his conduct was “in commerce.” Turning to the government’s cross-appeal, the Court agreed with the government that the defendant had to pay restitution to a victim even if the prostitution occurred overseas. The Court noted that in U.S. v. Bellaizac-Hurtado, it had held that the extraterritorial application of a criminal law exceeded Congress’ authority under the Offences Clause of Article I of the Constitution. But the Court noted that it might have reached a different result in Bellaizac-Hurtado if the government had relied on Article I’s Foreign Commerce Clause. “[T]he Foreign Commerce Clause provides Congress a broad power.” The Foreign Commerce Clause has at least “the same scope as the Interstate Commerce Clause.” “In other words, Congress’s power under the Foreign Commerce Clause includes at least the power . . . to regulate activities that have a ‘substantial effect’ on commerce between the United States and other countries.” Here, Congress had a “rational basis” to conclude that sex trafficking by force “even when it occurs exclusively overseas” is part of an economic class of activities that have a “substantial effect” on commerce “between the United States and other countries.” Accordingly, the extraterritorial application of the sex trafficking statute is a constitutional exercise of Congress’s authority under the Foreign Commerce Clause.

Ledford: death penalty can imposed despite "Flynn effect" on IQ test score

In Ledford v. Warden, Georgia Diagnostic and Classification Prison, No. 14-15650 (March 21, 2016), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1992 murder. The Court rejected the argument that the “Flynn effect,” which observes that IQ test scores have been rising steadily for 20 years, did not invalidate the district court’s rejection of Ledford’s argument that his IQ of 77-79 made him mentally retarded and therefore ineligible for the death penalty. The Court agreed with the district court that the “range” of Ledford’s IQ could be as high 80. Further, a district court is not required to accept and apply the Flynn effect. There is no medical consensus about the Flynn effect. The Supreme Court has not indicated how the Flynn effect should be factored into the IQ analysis.

Sammour: Affirming Identity Theft Convictions

In U.S. v. Sammour, No. 13-13962 (March 16, 2016), the Court affirmed the convictions and 115-month sentence of a defendant charged with stealing persons’ identities in order to recover fraudulent tax refunds from the Internal Revenue Service. Sammour pled guilty to the theft of public money charges, but went to trial on the aggravated identity theft charges. At sentencing, the district court denied an acceptance of responsibility sentence reduction, and departed upward from a Criminal History Category II to Category V. The Court rejected a challenge to the sufficiency of the evidence, finding evidence that showed that Sammour knew he was stealing the identity of real persons. On plain error review, the Court rejected the argument that the district court constructively amended the indictment, when it instructed the jury that a means of identification was a “date of birth” when the indictment had only charged “name and social security number” as the means of identification. The Court found no precedent in the Eleventh Circuit, or in sister circuits, squarely holding that an amendment of the “means” of committing a crime was a constructive amendment. Hence any error was not “plain.” The Court found no abuse of discretion in the district court’s decision to keep on the jury a juror who sent out a note stating: “Will we be offered the jury protection program? This reeks of Alquaida and honestly have concerns for our safety.” Turning to sentencing, the Court found no error in the district court’s decision to deny an acceptance of responsibility sentence reduction. Though Sammour pled guilty to some counts, he went to trial on others. Further, the district court found that his belated apology was entitled to little weight. The Court also affirmed the upward departure from Category II to V. A district court is authorized to assign criminal history points to unscored prior convictions and extrapolate the criminal history category that would have applied.

McCloud: Government did not prove three separate prior convictions for ACCA

In U.S. v. McCloud, No. 14-14547 (March 16, 2016), the Court found that the government did not prove that McCloud’s three prior armed robbery convictions were committed on separate occasions, and he therefore was not subject to a 15-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA). The Court concluded that although the charging documents reflected that there were three different victims, different items stolen, and three different case numbers, these pieces of information did not make it more likely than not that the crimes were committed successively rather than simultaneously. “On the face of the charging documents, it is plausible that all three victims were standing in the same location, and each simultaneously gave up the items of value in his pockets.” Moreover, “the individual case numbers themselves do not convey any information pertaining to the time or location of the offenses.” The Court also rejected the government’s argument that the incidents were separate because they involved different co-defendants. The Court noted that it was plausible that two offenses were committed simultaneously, or even that McCloud committed all three robberies simultaneously, “with varying amount of participation from his colleagues.” The Court also rejected the argument that the plea colloquy referred to one address, thus establishing that the other offenses were at other addresses. Finally, the Court rejected the government’s attempt to rely on the Presentence Investigation Report, pointing out that the defendant had objected to the specific paragraphs at issue. Once McCloud objected, the government had to present reliance and specific evidence in Shepard-approved documents to establish three separate incidents. It did not.

Castillo: Pretrial intervention participant's expectation of privacy akin to probationer's

In Castillo v. U.S. , No. 13-11757 (March 15, 2016), the Court rejected a claim that defense counsel rendered constitutionally ineffective assistance when he failed to move to suppress guns found by police during a warrantless search of Castillo’s home. At the time of the search, Castillo was on supervision subject to Florida’s pretrial intervention program. The Court analogized this status to the situation of persons on parole or on probation, who have diminished expectations of privacy. The police only needed “reasonable suspicion” to conduct a warrantless search of Castillo’s home. The police had reasonable suspicion based on the tip they received, a fax from Castillo’s former mother-in-law showing a photo of a man who appeared to be Castillo holding a gun and extending his middle finger and making a threatening statement. [Robreno, J., concurring, stated that a pretrial intervention participant’s privacy interest is not directly analogous to a probationer’s but sits somewhere between the general public and a probationer; he concurred in the result in this case because the information available to police gave them particularized suspicion sufficient to justify the search of Castillo’s house].

Osorio-Moreno: 120 month sentence for illegal reentry is not unreasonable

In U.S. v. Osorio-Moreno, No. 14-14447 (March 1, 2016), the Court rejected the argument that a 120-month sentence was substantively unreasonable for a defendant convicted of unlawful reentry after deportation, with a guideline range of 51-63-months. The Court noted that the defendant had 20 prior criminal convictions and six of these convictions were not counted in his 16 criminal history points. The Court noted that it had previously upheld large upward deviations based solely on an offender’s extensive criminal history, citing U.S. v. Shaw, U.S. v. Sanchez, and U.S. v. Rosales-Bruno. “Osorio has engaged in a life of crime, with a staggering 20 convictions, and the district court reasonably concluded that Osorio’s guideline range understated his criminal history.”

In re Anthony Johnson: Post-Johnson 2255 motion held in abeyance pending Welch

In In Re: Anthony Johnson, No. 16-10011 (Feb. 26, 2016), the Court ruled that it would keep in abeyance a second or successive 28 U.S.C. § 2255 motion to vacate a sentence pending the Supreme Court’s decision in Welch v. U.S. on whether Johnson v. U.S., 135 S.Ct. 2551 (2015) announced a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review. The Court recognized that 28 U.S.C. § 2244(b)(3)(D) provides that a court “shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.” The Court also recognized that the Supreme Court would not decide Welch within 30 days of the motion. However, the Court held that the 30-day deadline was not mandatory. The Court noted its inherent power to hold cases in abeyance, and the equitable nature of habeas proceedings. The Court also noted the judicial economy of granting all applications held in abeyance in a single order, should the Supreme Court in Welch hold that Johnson applies retroactively to cases on collateral review.

Holmes: "Lascivious" depiction based on intent of video's producer

In U.S. v. Holmes, No. 14-11137 (Feb. 25, 2016), the Court affirmed child pornography possession and production convictions and a 180-month sentence imposed on a stepfather who surreptitiously videotaped his teenage stepdaughter while she was in the bathroom. Holmes claimed that his videotaping was merely the work of a “voyeur” not the production of “sexually explicit conduct” such as “lascivious exhibition of the genitals or pubic area.” Joining other circuits to have so held, the Court concluded that depictions of otherwise innocent conduct may in fact constitute “lascivious exhibition” based on the actions of the individual creating the depiction. The “lascivious exhibition” is not the work of the child, whose innocence is not in question, but of the producer of editor of the video. Holmes’ placement of cameras in the bathroom where his stepdaughter was most likely to be videoed while nude, his extensive focus on capturing images of her pubic area, the angle of the camera set up, and his editing, all created a lascivious exhibition.

Danny: Belated appeal request does not toll habeas limitations period

In Danny v. Sec., Fla. Dep’t of Corrections, No. 14-15522 (Feb. 3, 2016), the Court affirmed the denial of habeas relief, holding that a Florida inmate’s petition for belated post-conviction appeal did not toll the one-year statute of limitations. The Court explained that the statute of limitations is only tolled when an application for “collateral review” is pending in the state courts. But the Court held that an application for a belated appeal is not an application for “collateral review,” as it does not challenge any ruling in the criminal case.

Patterson: Habeas Petition Not Second or Successive

In Patterson v. Sec., Fla. Dep’t of Corrections, No. 12-12653 (Jan. 29, 2016) (2-1), the Court held that a habeas petition was not subject to the restrictions on “second and successive” petitions because the state court had amended the judgment to eliminate a requirement of chemical castration, and the petition was the first habeas petition from this amended judgment. The Court analogized Patterson’s case to Magwood v. Patterson, 561 U.S. 320 (2010) and Insignares v. Secretary, 755 F.3d 1273 (11th Cir. 2014), cases in which an amended judgment meant that the subsequent habeas petition, challenging the amended judgment, was not second or successive.

Overstreet: Appellate counsel was constitutionally ineffective

In Overstreet v. Warden, No. 13-14995 (Jan. 27, 2016), the Court (Black, Martin, and Anderson., JJ.) reversed the denial of habeas relief to a Georgia inmate.. The Court held that Georgia appellate counsel was constitutionally ineffective in failing to raise on appeal, in the Georgia appellate courts, the issue that convictions for the crime of “kidnapping” should be reversed, because intervening Georgia law held that the asportation of victims during a robbery did not constitute “kidnapping.” The Court noted that appellate counsel has no duty to raise every non-frivolous issue and reasonably weed out weaker (albeit meritorious) arguments. Only when ignored arguments are “clearly stronger than those presented” will appellate representation be ineffective. The Court noted: “In many (perhaps most) cases, counsel may err without being deficient or may be deficient without causing prejudice.” But in light of intervening Georgia caselaw, Overstreet’s kidnapping convictions would have been reversed. Therefore, appellate counsel’s representation was “undeniably ineffective.”

Bowers: Evidence "close" but sufficient

In U.S. v. Bowers, No. 14-11585 (January 22, 2016), the Court affirmed the convictions for eight Hobbs Act violations and eight counts of carrying, using a firearm in violation of 18 U.S.C. § 924(c), and a sentence of 332 months. Bowers had filed an untimely motion for severance of the counts of the Indictment. Reviewing this issue for plain error on account of the untimeliness (and finding that waiver did not apply under newly-amended Fed. R. Crim. P. 12), the Court found no plain error. The Court dismissed as “speculation” Bowers’ argument that the jury may have cumulated evidence from joined counts. The Court noted that to the contrary the relatedness of the robberies permitted the jury to use identity evidence from other counts to determine the robber’s identity. Though recognizing that the sufficiency of the evidence challenge presented a “close case,” the Court found that the common modus operandi of the robberies and the totality of the identity evidence sufficed to convict Bowers. The Court recognized that a scientific inference from DNA evidence might have been problematic, but concluded that the additional identity evidence and the modus operandi evidence made an inference based on DNA “permissible.” The Court rejected Bowers’ challenges to his sentence, including his claim that the sentence was cruel and unusual under the Eighth Amendment. The Court noted that in Harmelin v. Michigan, the Supreme Court rejected an Eighth Amendment challenge to a sentence of life without parole for possession of cocaine.

McCarthan: no subject matter jurisdiction for savings clause relief

In McCarthan v. Warden, FCC Coleman, No. 12-14989 (Jan. 20, 2016), the Court held that the savings clause of 28 U.S.C. 2255(e) did not permit the district court to entertain a petition under 28 U.S.C. § 2241 challenging an ACCA sentence. The Court explained that even after disqualifying two of the prior convictions that had qualified McCarthan as an armed career criminal at his original sentencing – in light of intervening Supreme Court caselaw – three qualifying convictions still supported the ACCA enhancement. Consequently, McCarthan could not obtain subject matter jurisdiction to decide his § 2241 petition.

Lockett: South Carolina "burglary" indivisible

In U.S. v. Lockett, No. 14-15084 (Jan. 21, 2016), the Court vacated the sentence of a defendant sentenced as an armed career criminal under ACCA. Lockett argued that his two prior conviction for “burglary” in South Carolina did not count as predicate “violent felony” offenses. The Court agreed. Noting that Descamps requires that a sentencing court to determine whether a statute is “divisible” or “indivisible” based on whether it requires proof of alternative elements, the Court concluded that South Carolina’s burglary statute was indivisible, because it merely requires proof of entry in a “dwelling,” and the type of dwelling is not an element of the offense. Under South Carolina law, the type of dwelling includes locales, for example, a “vehicle,” that are not “generic” burglary, that is, do not involve entry into a “building or structure.” In a footnote, the Court noted its precedent that had held, on plain error review, that the South Carolina statute was “divisible.” But Lockett preserved the issue, so review was de novo, not for “plain error” – and on de novo review, Lockett prevailed.

Zitron: Affirming Tax return convictions

In U.S. v. Zitron, No. 14-10009 (Jan. 21, 2016), the Court affirmed convictions for filing false tax returns, use of an unauthorized access device, and aggravated identity theft. The Court rejected the argument that the counts charging identity theft, which involved stealing the identities of the defendant’s son and his ex-wife, should have been severed from the tax counts. The Court noted that the district court instructed the jury to treat the counts separately, and that evidence of one crime would have been admissible at a separate trial on the other crime. The Court rejected the argument that a government expert improperly commented on Zitron’s failure to testify when he said that absent an explanation from the defendant, the cash in his bank account would be treated as income. In context, the statement was not impermissible. Turning to the challenge of the sufficiency of the evidence on the aggravated identity theft, the Court noted that because defense counsel at trial did not make the “specific argument” in his Rule 29 motion that was being raised on appeal, the sufficiency issue would only be reviewed for “plain error.” The Court found no “plain error,” in light of testimony that Zitron did not have permission to use another’s identity. The Court rejected the argument that the calculation of the tax loss figure should only have included amounts deposited in Zitron’s bank accounts. All conduct violating the tax laws was the proper basis for the loss calculation. The Court also rejected Zitron’s challenge to his “organizer or leader” sentence enhancement, pointing out that both of the person Zitron directed knew that he was engaged in a scheme to hide the source of his income for tax purposes.

Adams: Vacating ACCA sentence post-Johnson

In U.S. v. Adams, No. 14-14329 (Jan. 12, 2016), the Court vacated the 15-year sentence of a defendant sentenced under the Armed Career Criminal Act (ACCA), because he had been sentenced under ACCA’s residual clause. Two of Adams’ prior convictions were for third-degree fleeing or attempting to elude, in violation of Fla. Stat. § 316.1935. In the trial court, Adams had objected that the residual clause was unconstitutionally vague, and, while his appeal was pending, the Supreme Court so held in Johnson. The Court noted that Adams’ § 315.1935 prior convictions, post-Johnson, could qualify as predicate offenses only if they qualified under other ACCA provisions, such as the elements clause. But the § 315.1935 offenses did not have as an element the use of physical force and did not otherwise qualify. Those prior convictions were no longer ACCA-qualifying offenses, as the government conceded. The Court noted that at sentencing the government “disavowed reliance on a fourth conviction to form the basis of the ACCA enhancement. Citing U.S. v. Canty, the Court held that the government thereby waived its opportunity to now rely on this fourth offense.

Salmona: No mandamus subject matter jurisdiction to enforce plea agreement

In U.S. v. Salmona, No. 15-12659 (Jan. 8, 2016), the Court held that the district court lacked subject matter jurisdiction to adjudicate an inmate’s claim that the government breached its plea agreement when it failed to make him serve his sentence in a federal prison, as opposed to a state prison. Salmona’s plea agreement provided that in exchange for his cooperation, the government would allow him to serve a state sentence in federal custody. The agreement also provided that in the event Salmona gave false testimony, the promise of immunity would be void. Salmona gave false testimony, and the government relied on this breach to rescind the plea agreement, including its promise to have Salmona serve his state sentence in federal prison. Salmona then brought an action in the district court, seeking to enforce the federal custody provision of his plea agreement. The Court found that the mandamus statute, 28 U.S.C. § 1361, was the only basis for Salmona’s claim, but this requires a showing that the government owed Salmona a clear nondiscretionary duty. Here, it was “disputable” whether the government could rescind the entire plea agreement, based on Salmona’s false testimony, because this was a “substantial” breach of the plea agreement. The Court noted a Second Circuit case holding that the government could rescind a plea agreement when the defendant was in material breach of the agreement. [Note: this Second Circuit case did not involve a plea agreement, as here, that specified the government’s remedy [voiding a promise of immunity] in the event the defendant gave false testimony]. Because it was disputable whether Salmona was entitled to relief, he did not satisfy the jurisdictional requirement of showing a clear non-discretionary duty.

In re Franks: Johnson not retroactive for second or successive 2255 ACCA petitioner

In In re: Kurt Franks, No. 15-15456 (Jan. 6, 2016), the Court (2-1) (Martin, J., dissenting) held that an inmate who filed a “second or successive” motion to vacate his sentence under 28 U.S.C. § 2255 could not benefit from the holding in Johnson v. U.S. that the residual clause of ACCA was unconstitutional, because the Supreme Court has not made Johnson retroactive. The Court noted that, in a case involving an offender sentenced under the residual clause of the career offender Guideline, it had held in In re Rivero, 797 F.3d 986 (2015) that Johnson was not retroactive. The Court found the retroactivity analysis “identical” here. In Rivero, the Court had reasoned that Johnson had not “necessarily dictated” that its holding should be applied retroactively. The Court noted that in 28 unpublished cases it had already applied Rivero to an ACCA movant. Dissenting, Judge Martin noted that a Supreme Court decision applies retroactively when a defendant “faces a punishment that the law cannot impose upon him.” Judge Martin stated that Rivero, which involved an offender sentenced under the Sentencing Guidelines, did not extend to an offender sentenced under ACCA. [Query: In Spencer, the Eleventh Circuit held that a claim that an offender was not correctly categorized as a “career offender” under the Guidelines was not the type of claim that was cognizable under § 2255; might this be a basis for distinguishing a § 2255 career offender from a § 2255 ACCA claimant?]. Judge Martin noted that the Court could certify the retroactivity issue to the Supreme Court, or rehear the issue. Judge Martin recognized that in 28 prior unpublished cases the Court had denied relief to claimants like Franks, and added: “Twenty-eight wrongs don’t make a right.”