Seabrooks: Florida robbery is an ACCA "crime of violence"

In U.S. v. Seabrooks, No. 15-10380 (Oct. 19, 2016), the Court rejected challenges to the “aiding and abetting” jury instruction, and, as to sentencing, held that prior Florida robbery convictions qualified as violent felonies under the Armed Career Criminal Act (“ACCA”). Seabrooks was convicted of aiding and abetting in the possession of a stolen firearm, and in being a felon in possession of a firearm. On plain error review, the Court rejected Seabrooks’ argument based on Rosemond v. U.S. that to obtain an aiding and abetting instruction, the government must prove that a defendant had “advance knowledge” of his accomplice’s actions. The Court stated that an aiding and abetting conviction does not invariably require that the aider and abettor know the extent of his confederate’s criminal intentions before he initiates the offense conduct. Rather, it can apply if a defendant does not withdraw from the scene once he realizes the confederate’s criminal designs he qualifies as an aider and abettor. Here, Seabrooks received the stolen firearms from his accomplice and placed them in the console of a vehicle. Further, there was no plain error regarding whether Rosemond requires advance knowledge of a principal’s status as a convicted felon, as neither the Eleventh Circuit nor the Supreme Court have resolved this question. Turning to sentencing, the Court held that, under U.S. v. Lockley, a Florida armed robbery qualified as a “crime of violence” under ACCA. The Court rejected Seabrooks’ argument that Lockley should be limited to post-1999 Florida robberies. The Court noted that the Florida robbery statute has not changed from the 1970s to the present. The Court further noted that since 1922, the Florida Supreme Court has held that the force that is required to make the offense a robbery is force sufficient to overcome a victim’s resistance – the kind of force that qualifies an offense, under ACCA, as a crime of violence. [Martin, J., concurring, did not agree that the scope of the Florida robbery statute had not changed since the 1970s. Judge Martin noted that under McCloud, a 1976 Florida Supreme Court case, “any degree of force” sufficed to convert larceny into robbery. This rule changed in 1997, when the Florida Supreme Court decided Robinson. Seabrooks’ convictions occurred in 1997, after Robinson.]

Plate: jail for inability to pay restitution is improper

In U.S. v. Plate, No. 15-13928 (Oct. 5, 2016), where the district court imposed a jail sentence, in lieu of probation, because the defendant was only able to pay $40,000 toward the $142,000 she owed in restitution, the Court reversed the sentence for being substantively unreasonable,. The district court abused its discretion by giving dispositive weight to Plate’s inability to pay restitution. The government recognized that the district court would have imposed a sentence of no further incarceration if Plate had been able to pay restitution. The district court based its sentence of incarceration solely on an impermissible factor. Because the district court had reiterated its earlier position when it denied Plate bond pending appeal, and characterized her arguments on appeal as “frivolous,” the Court remanded the case for resentencing before a different district court judge.

Wilchcombe: Prosecution may comment on post-arrest/pre-Miranda silence

In U.S. v. Wilchcombe, No. 14-14991 (Oct. 4, 2016), the Court affirmed convictions of defendants charged with drug trafficking while on board a vessel subject to U.S. jurisdiction en route from Haiti to the Bahamas. The Court rejected the defendants’ argument that it should review en banc its holding in U.S. v. Campbell that the MDLEA violates Due Process because it does not require proof of a nexus between the United States and a defendant. The Court also rejected the argument that the Bahamian government’s “statement of no objection” was not clear enough to inform the U.S. that the Bahamian government consented to its exercise of jurisdiction over the vessel, finding that it communicated the “substance” of consent. The Court rejected Wilchcombe’s argument that his “mere presence” on the boat sufficed to sustain his conspiracy conviction, pointing out that the boat contained 895 kilograms of narcotics, much of it stored on deck, and had long been acquainted with the others on the boat, including its captain. Acknowledging that the circuits are split on whether the prosecution can comment at trial on a defendant’s silence prior to being given Miranda warnings, the Court noted that in the Eleventh Circuit this is not error, and therefore not a basis for a mistrial. Even if it was error, it was harmless in light of the ample evidence of guilt, and that as to one defendant it was used for impeachment, which is permitted. The Court rejected the argument that the government destroyed the vessel in bad faith without photographing it, and in repatriating one of the occupants to Haiti. The Coast Guard allocated its resources to recovering bales thrown overboard, and it was mere “speculation” that this occupant would have provided exculpatory testimony. Finally, the Court rejected the argument that Fed. R. Evid. 404(b) precluded admission of evidence that one of the defendants was previously arrested while captaining a boat carrying drugs. This evidence tended to prove this defendant’s knowledge that drugs were present, and made his lack of knowledge defense less plausible. [Jordan and Walker, JJ. concurred, but argued that Eleventh Circuit precedent holding that the government can use post arrest/pre-Miranda silence is misguided and should be reconsidered en banc, stating that the trigger for the constitutional protection of silence should be custody, not the recitation of Miranda warnings.]

Takhalov: On panel rehearing, insufficient evidence on count

In U.S. v. Takhalov, No. 13-12385 (Oct. 3, 2016), on panel rehearing, the Court agreed with defendant Pavlenko that insufficient evidence supported one of Pavlenko’s convictions for wire-fraud. The Court ruled that American Express could not have relied on Pavlenko’s purportedly fraudulent email since it received this email after it had already approved a charge. Accordingly, the Court reversed the conviction.

Vail-Balon: Mere touching is not a crime of violence

In U.S. v. Vail-Bailon, No. 15-10351 (Sept. 28, 2016) (2-1), the Court held that when it is committed by “mere touching,”Florida felony battery in violation of Fla. Sta. § 784.041 does not qualify as a “crime of violence” for purposes of U.S.S.G. § 2L1.2. The Court noted that § 784.041 is a “divisible” offense. Here, no Shepard-approved documents established under which alternative element Vail-Balon was convicted. The Court therefore assumed that he was convicted under for “actually and intentionally touching” a victim. Simple battery, under Florida law, contains the same touching element, and can be satisfied by any intentional physical contact, no matter how slight. But the elements clause of § 2L1.2 requires “violent force.” The Court noted that at oral argument Vail-Bailon asserted that a person can be guilty of felony battery in Florida if the offender taps another person on the shoulder at the top of stairs, and the person falls down the stairs and suffers grievous bodily harm. The government did not challenge that interpretation at oral argument. Such a crime does not involve the use of “violent force.” “Florida battery by mere touching cannot qualify as a ‘crime of violence,’ no matter what the injury resulting from the mere touching might turn out to be. Citing Leocal, which held that driving under the influence was not a crime of violence, the Court noted that an action that does not normally cause bodily harm, like touching, only qualifies as a “crime of violence” if the offender engages in it “with some type of intent to harm another.”

White: Prior Alabama drug convictions count as ACCA predicates

In U.S. v. White, No. 14-14044 (Sept. 21, 2016), the Court rejected the defendant’s argument that his prior Alabama drug trafficking convictions qualified under ACCA as a “serious drug offense.” White’s prior Alabama offense was for possessing marihuana “for other than personal use.” White argued that he could have possessed marihuana to administer or dispense it. The Court rejected this as a mere “theoretical possibility.” The Court also rejected the argument that its precedent in U.S. v. Robinson, which had rejected the same argument, had been abrogated by the Supreme Court subsequent decision in Descamps. Descamps’ holding that the modified categorical approach applies only when a statute is divisible “has no bearing” on whether possession of marijuana for other than personal use necessarily involves an intent to distribute, that is, a “serious drug offense.” The Court likewise rejected the argument that White’s prior cocaine conviction was not a predicate ACCA offense, because it was merely based on a quantity of cocaine, not necessarily manufacturing, distributing, or possessing with intent to do either. The Court noted that it had rejected this same argument previously, finding one could infer an intent to traffic in cocaine from the quantity of cocaine involved. The Court again rejected the argument that its prior precedent was no longer controlling in light of Descamps.

Cruickshank: Reversing denial of minor role reduction

In U.S. v. Cruickshank, No. 14-13754 (Sept. 20, 2016), the Court affirmed convictions for drug trafficking on the high seas, in violation of 46 U.S.C. § 70503. The Court held that its precedent in U.S. v. Campbell foreclosed a challenge to the constitutionality of the statute. The Court also rejected a challenge to the sufficiency of the evidence, finding that the evasive maneuvers of the vessel while being followed by a Coast Guard helicopter, and other evidence, sufficed. The Court also rejected the defense challenge to the district court’s reliance, for jurisdictional purposes, on a State Department certification that Jamaica had not accepted a claim of nationality for the vessel. The Court noted that under the statute, jurisdiction was not an element of the offense. The Confrontation Clause was therefore not implicated by the admission in evidence of the State Department certification. Turning to sentencing, the Court reviewed the district court’s denial of a “minor role” Guideline sentence reduction in light of the amendments to this Guideline that took effect in November 2015, amendments that clarified the meaning of this Guideline. The Court noted that the district court stated that the quantity of cocaine being transported was so large that no participant in the scheme could have been eligible for a minor role reduction. However, in light of the Court’s precedent in U.S. v. DeVaron, and the factors identified in the amended Guideline, it was legal error for the district court to say that drug quantity could be the only factor to be considered. The Court noted that Cruickshank did not load the drugs on the vessel, reconstruct the vessel, fuel the vessel, attend the planning meetings for the trip, or otherwise appear to have any role concerning the quantity of drugs involved. The Court therefore vacated the minor role reduction denial, and vacated the case for the district court to consider “the totality of the circumstances.”

Sullivan: Ineffective post-conviction counsel

In Sullivan v. Sec., Fla. Dep’t of Corrections, No. 15-13993 (Sept. 20, 2016), the Court affirmed the grant of habeas relief to a Florida inmate who claimed that post-conviction counsel was ineffective for failing to investigate a claim that trial counsel was ineffective in counseling Sullivan to reject a 7-year plea offer and to go to trial on an voluntary intoxication defense, when voluntary intoxication was no longer a valid defense under Florida law, and Sullivan, a habitual offender, received a 30-year sentence. The failure to investigate was objectively unreasonable. Had post-conviction counsel investigated, he would have learned about the 7-year plea offer, and would have determined that it was ineffective advice to rely on a defense that had been abolished years earlier.

Difalco: 851 notice is not jurisdictional

In U.S. v. Difalco, No. 15-14763 (Sept. 20, 2016), the Court, reversing Circuit precedents, held that the failure of the government to file a notice of prior conviction, as required by 21 U.S.C. § 851, is not a jurisdictional defect. “Section 851 is essentially a claims-processing rule that has no impact on the district court’s subject-matter jurisdiction.” Therefore, the notice requirement of Section 851 is subject to waiver. Difalco’s plea agreement contained an appeal waiver. This waiver knowingly waived Difalco’s right to challenge a § 851 defect in his sentence. Moreover, even if the waiver was not knowing, there was no defect that gave rise to “plain error.” Though the government’s § 851 notice was “hardly a model to be emulated by prosecutors in future cases,” the “scrivener’s errors” it contained did not result in Difalco not being put on notice of the prior conviction upon which the government was relying. Nor did the district court’s statements at sentencing – at which it varied downward below the Guideline range – indicate that Difalco’s sentence was affected by any error. The Court also rejected the argument that the Magistrate Judge committed error during its Rule 11 colloquy, finding that Difalco was informed of the mandatory minimum punishment on account of his prior felony convictions.

Matchett: Rehearing Denied

In U.S. v. Matchett, No. 14-10396 (Sept. 13, 2016), the Eleventh Circuit denied rehearing en banc from the panel decision, which had held that the void for vagueness doctrine does not apply to the sentencing guidelines.

Cox: No "new judgment" for AEDPA purposes where amended judgment did not affect sentence

In Cox v. Sec., Fla. Dept of Corrections, No. 13-15718 (Aug. 26, 2016), the Court held that an amended judgment of a Florida court that dismissed one of the counts of conviction did not qualify as a “new judgment” for purposes of avoiding AEDPA’s bar on second or successive habeas petitions filed more than one year after a judgment became final. The Court noted that the dismissal of the count of conviction did not affect the sentence, as the trial court had imposed a suspended sentence on this count, and he was serving a life sentence on the remaining counts. As a result, Cox was not “in custody” under this count, and the “new judgment” rule did not apply.

Hunter: Government breached plea agreement

In U.S. v. Hunter, No. 15-12640 (Aug. 26, 2016), the Court vacated a defendant’s sentenced because the government breached the plea agreement. The plea agreement provided that the government would recommend at sentencing an acceptance of responsibility sentence reduction. Hunter pled guilty to his drug trafficking charges. In response to the presentence investigation report, the government, instead of requesting a reduction for acceptance of responsibility, sought an upward departure or variance. The district court decided to give the acceptance of responsibility reduction, but then, at the government’s urging, imposed a 60-month sentence, an upward departure or variance from the Guideline range of 18-24 months. Hunter’s plea agreement contained an appeal waiver; but an appeal waiver does not include a waiver of a government’s breach of a plea agreement. The Court found that the government breached its promise to recommend an acceptance of responsibility sentence reduction. The government claimed that it was relieved of this obligation because, prior to the plea agreement, Hunter had testified at a suppression hearing in a manner that the district court found not to be credible, and it argued that this fell within one of the exceptions of the plea agreement. But “the government cannot avail itself of [exceptions to the plea agreement] based solely on facts of which it was aware prior to entering the plea agreement.” The government claimed that it anticipated that the district court would impose an obstruction of justice enhancement. But the government failed to condition its obligation to recommend the acceptance reduction on a specific ruling with regard to obstruction. The government cannot read the plea agreement as “a promise it knew it did not have to keep.” This would “induce a guilty plea in exchange for nothing.” The government claimed that Hunter was not entitled to any remedy, because the district ultimately disregarded its objection to an acceptance of responsibility reduction. The Court rejected this argument. “[W]e are not concerned with whether the district court was influenced by the government’s recommendation (or lack thereof); instead, our focus in on the interests of justice.” The breach occurred before the district court imposed sentence; any actions by the district court thereafter could “neither moot nor cure the government’s breach.” The Court therefore applied one the applicable remedies in this circumstance: it remanded the case for resentencing before a different district court judge.

Tharp: No ineffective assistance of counsel

In Tharpe v. Warden, No. 14-12464 (Aug. 25, 2016), the Court denied habeas relief to a Georgia inmate sentenced to death for a 1990 murder. The Court rejected Tharpe’s ineffective assistance claim, finding that a fairminded jurist could easily have concluded that counsel’s investigation was reasonable assistance. The Court found that Tharpe had failed to identify any “red flags” that would have required further investigation of his background. The Court also rejected Tharpe’s claim that he suffered from cognitive impairments that made him ineligible for the death penalty. He was able to graduate high school, and engage in routing commercial transactions.

Wilson: On habeas review, court will not "look through" summary disposition

In Wilson v. Warden, No. 14-10681 (Aug. 23, 2016), the Court (en banc) (6-5), affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1996 murder. Wilson had sought habeas relief in Georgia state courts unsuccessfully: his request for a certificate of probable cause was summarily denied by the Georgia Supreme Court. The Court held that this adjudication was an adjudication on the merits. The Court would not “look through” this denial to the reasoning of the lower court. Wilson was required to show that there was no reasonable basis for the Georgia Supreme Court’s ruling, which he failed to do.

Jones: No habeas relief for 1991 murder

In Jones v. Sec., Fla. Dep’t of Corrections, No. 13-15053 (Aug. 25, 2016), the Court affirmed the denial of habeas relief to a death row inmate sentenced to death for a 1991 murder. The Court rejected the argument that counsel at the penalty phase was ineffective for failing to present mental health mitigation evidence. The Court deferred to the Florida Supreme Court’s determination that mitigating evidence would have been undercut by other mental health evidence that indicated that Jones was not suffering from any mental illness. The Court also found that Jones had not carried his burden of showing that he was prejudiced by trial counsel’s failure to object to his alleged shackling at trial. “The evidence establishing Jones’s guilt was overwhelming.”

Gonzalez: No Double Jeopardy violation for convictions on two conspiracies

In U.S. v. Gonzalez, No. 13-15878 (Aug. 23, 2016), the Court rejected the Double Jeopardy challenges of a defendant convicted of conspiracy to defraud the U.S. in violation of 18 U.S.C. § 371 and a separate count of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349. The Court noted the Double Jeopardy test is whether each offense requires proof of a fact which the other does not. Here, the § 371 conspiracy required proof of an overt act, whereas the health care fraud conspiracy did not. The § 371 required the United States government to be a victim whereas health care fraud did not. Hence, there was no Double Jeopardy violation in convicting Gonzalez under both statutes. On plain error review, the Court rejected Gonzalez’ argument that the jury instructions mistakenly told the jury that a conviction of one conspiracy would require a conviction of the other charged conspiracy. The Court further found that even if the instruction was mistaken, there was “more than ample evidence” to support Gonzalez’ conviction for both conspiracies.

Phillips: Civil writ of bodily attachment is valid warrant under Fourth Amendment

In U.S. v. Phillips, No. 14-14660 (Aug. 23, 2016), the Court held that, under the Fourth Amendment, the police can validly arrest a person based on a civil writ of bodily attachment for unpaid child support. The Court noted that the Fourth Amendment requires a warrant to be “particular, sworn, and supported by probable cause.” The Florida writ in Phillips’ case met these requirements because it issued only after a person was found liable by a preponderance of the evidence for civil contempt for failure to pay child support. The Court rejected the argument that the warrant must be based on a crime, as opposed to a civil offense, pointing out that bench warrants based on civil contempt have been held not to present a problem under the Fourth Amendment. The Court also noted that even if material witness warrants might not satisfy the Fourth Amendment, this would not affect the decision because writs of bodily attachment, like bench warrants, are based on a “violation of law” – here, civil contempt. Turning to sentencing, the Court held that Phillips had waived his challenge to his 15-year sentence as an armed career criminal, because his plea agreement stated that he understood that the district court “must” impose a sentence of no less than 15 years, and at sentencing he affirmatively asked the district court to sentence him to 15 years.

Clay: Affirming health care fraud convictions

In U.S. v. Clay, No. 14-12373 (Aug. 11, 2016), in a 124-page opinion, the Court affirmed convictions of defendants convicted, after a three-month trial, of filing false Medicaid expense reports. After a length recitation of the facts, the Court rejected challenges to the sufficiency of the evidence. The Court found “abundant” evidence of false expenses, noting that the firm’s own forensic accountant testified that reported expense amounts were false. The Court found that Florida’s “80/20” law, and implementing contracts, mandated that 80% of the premium paid to a health plan must be expended for health care services, and could not count as administrative expenses or overhead. The defendants submitted false reports to avoid these mandated requirements, and knew their reports were false. The Court also affirmed the convictions for making false statements to federal agents. The Court also rejected a challenge to jury instructions. The defendants argued that the jury instruction regarding their “deliberate indifference to the truth” lowered the standard to recklessness, instead of an intent to defraud. The Court found that the instruction linked “deliberate indifference” to “intent to defraud.” Further, the trial proceeded under a theory of actual knowledge rather than deliberate indifference. The Court also rejected the defendants’ challenge to the district court’s ruling that their compensation could be admitted in evidence. The Court noted that the district court instructed the jury that the defendants’ wealth had nothing to do with their guilty, but was admitted only to show their “financial motive” to commit the charged frauds. The Court also rejected a challenge to the admissibility of a restated financial statement, generated while the company was under investigation.

Parker: Baptiste bars SOS grant for applicant whose application was previously denied

In In re: Leslie Parker, No. 16-13814-J (Aug. 10, 2016), the Court reversed its earlier grant of an application to file a second or successive § 2255 motion. A member of the panel which had earlier granted Parker’s application learned of a conflict requiring recusal. As a result, the Court had to decide the request anew. Since its earlier grant, the Court had decided In re Baptiste, which held that it must dismiss an application from a prisoner, like Parker, whose prior request had previously been denied. The Court therefore now denied Parker’s application. [Rosenbaum and Jill Pryor, concurred but stood by their view that Baptiste “is incorrect as a matter of law.”].

Devon Chance: Granting SOS to 924(c)/Hobbs Act conspiracy applicant

In In re: Devon Chance, No. 16-13918-J (Aug. 8, 2016) (Tjoflat, Wilson, Jill Pryor), the Court granted an application for leave to file a second or successive § 2255 motion to an applicant who was convicted under 18 U.S.C. § 924(c). The Court noted that the predicate offense for the § 924(c) offense was conspiracy to violate the Hobbs Act. As in In re Pinder, the law is “unsettled” as to whether this companion conviction was valid, post-Johnson. The Court recognized that Chance received concurrent sentences on substantive Hobbs Act robbery offenses, offenses that are still valid § 924(c) predicates post-Johnson. However, the sentences were not “fully concurrent” because the $100 fines on each count were cumulative. Chance therefore had at least a pecuniary interest in the review of his sentence. Further, as in In re Davis, the terms of incarceration were not dictated by a mandatory minimum. For these reasons, the concurrent sentence doctrine that the Court applied in In re Williams did not apply here. The Court then addressed the Court’s recent statement in In re Jasper Moore that “the district court cannot grant relief in a § 2255 proceeding unless the movant . . . proves that he was sentenced using the residual clause.” Though recognizing that its own discussion of Moore was dicta, the Court stated that this statement in Moore was dicta, because it was necessary to the decision to grant an SOS application. The Court added that the statement in Moore was “quite wrong.” First, the statement implied that a district court deciding a § 2255 motion “can ignore decisions from the Supreme Court that were rendered since that time in favor of a foray into a stale record.” But cases like Descamps and Mathis are binding. If the district court determined that Hobbs Act conspiracy does not qualify under the elements clause, in light of Descamps and Mathis, then that would be conclusive proof that the defendant was wrongfully sentenced under the residual clause – regardless of whether the district court “uttered the magic words ‘residual clause.’” Second, eligibility under § 2255 should be based solely on “a chance remark.” Quoting Rivers v. Roadway Express, Inc., the Court noted that a judicial construction of a statute is an authoritative statement of what the statute meant “before as well as after the decision of the case giving rise to that construction.”