Cobb: Affirming 324-month sentence for fraudulent tax return filings

In U.S. v. Cobb, No. 15-12817 (Nov. 30, 2016), the Court affirmed the 324-month sentence of a defendant convicted of mail and wire fraud conspiracy, aggravated identity theft, and firearm possession, in a scheme involving using stolen identities to file hundreds of fraudulent tax returns. The Court rejected Cobb’s challenge to the $2.5 million loss amount to support an 18-level sentence enhancement, and the determination that the offense involved more than 250 victims, finding that the government presented sufficient evidence to support these calculations. The Court also rejected the challenge to the $1.8 million restitution award, finding that this was the amount of money the Internal Revenue Service paid out. The Court found that Cobb waived a challenge to the sentence enhancement for use of an unauthorized access device, and a challenge to the finding that a prior serious drug offense qualified him for an enhanced sentence, finding that he withdrew his objections to these enhancements at the sentencing hearing.

Ammar: Speedy Trial Act violation

In U.S. v. Ammar, No. 13-12044 (Nov. 29, 2016), the Court vacated a defendant’s conviction because of a violation of the Speedy Trial Act, and remanded for the district court to consider whether the dismissal of the indictment should be with, or without, prejudice. On September 1, 2011, Ammar was indicted, with other defendants, in a case in which the government was contemplating seeking the death penalty. This indictment started the 70-day Speedy Trial Act deadline. However, over Ammar’s repeated objections, the district court set the case for trial one year later. The district court rejected Ammar’s motion to dismiss for a Speedy Trial Act violation on the ground that the trial date was “by agreement of everybody.” This finding was factually inaccurate, as Ammar had repeatedly objected to the length of the delay. Further, an agreement of the parties does not satisfy the required “ends of justice” finding to justify tolling the Act’s 70-day deadline. The Court rejected the argument that a district court need not utter “magic words” to toll the deadline, finding that, even if this were possible, here the district court explicitly declined to make ends-of-justice findings, relying instead, erroneously, on the “agreement of everybody.” The Court left it to the district court to apply the statutory factors and make the determination whether the indictment should be dismissed with or without prejudice.

Gundy: Georgia burglary qualifies as generic burglary

In U.S v. Gundy, No. 14-12113 (Nov. 23, 2016), the Court (2-1) held that a Georgia burglary conviction qualified as a “crime of violence” for purposes of the Armed Career Criminal Act (ACCA). The Georgia statute defined burglary as unlawful entry “within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another . . .” The Court recognized that this definition swept more broadly than generic burglary, because it encompassed not only entry into buildings, but also into vehicles. However, based on Georgia caselaw, which requires an indictment to specify the location of an alleged burglary, the Court concluded that each of the locations were “locational elements,” not merely alternative means of committing burglary. As a result, the statute was “divisible.” Each location was a separate crime. Thus, the Court could examine the record of Gundy’s prior burglaries to determine whether Gundy’s prior burglaries qualified as generic burglaries. Because Gundy’s prior burglaries involved a “dwelling house” or a “business house,” they all qualified as generic burglaries for ACCA purposes. [Jill Pryor, J., dissenting, interpreted Georgia’s standard jury instructions’ reference to “building or dwelling” as referring to a single element, not as identifying separate crimes, and noted that, in burglary trials, Georgia juries are not required to agree on the type of dwelling at issue].

Error in verdict form merely clerical

In U.S. v. Davis, No. 15-10927 (Nov. 22, 2016), the Court rejected the argument that the trial court erred when it amended the judgments to change a count of conviction from “Robbery” in violation of 18 U.S.C. § 924(c), to possession of a firearm during a crime of violence in violation of § 924(c). The Court noted that the error in the initial judgment arose out of a mistake in the jury’s verdict form. However, the indictment, the parties’ closing arguments, the jury instructions, and the jury’s questions during deliberations indicate that it understood that the charge in this count was not “robbery,” but a § 924(c) firearm violation. Moreover, the overwhelming evidence in the case supported this conviction. The jury “inescapably” found that the defendants “used a gun.” The error in the verdict form was merely clerical.

Esprit: Florida burglary is not an ACCA "crime of violence"

In U.S. v. Esprit, No 14-13066 (Nov. 21, 2016), the Court held that, post-Johnson, Florida burglary in violation of Fla. Stat. § 810.02(1)(b)(1) is not a “crime of violence” for purposes of a sentence enhancement under the Armed Career Crimnal Act (ACCA). The Court determined that Fla. Stat. § 810.02(1)(b)(1) is an “indivisible” statute, because a jury is not required in its verdict to identify the means that were used to commit the burglary, whether by entering a building or entering a building’s “curtilage.” Unlawful entry of a building or its curtilage are possible alternative means of committing the offense of burglary, not alternative elements of the burglary offense. As a result, the “modified categorical approach,” which authorizes examining the facts underlying a conviction, does not apply. Consequently, since the Supreme Court in James held that the inclusion of “curtilage” in Florida’s burglary offense takes this offense outside the definition of generic burglary, which requires entry into, or remaining in, a building or other structure, Florida burglary did not qualify as a “crime of violence.” The Court therefore vacated Esprit’s sentence and remanded to the district court with instructions that he be resentenced without the ACCA enhancement.

Leon: No plain error constructive amendment

In U.S. v. Leon, No. 15-12578 (Nov. 16, 2016), the Court, on plain error review, rejected the argument that the district court constructively amended the indictment by allowing the defendant to be convicted of attempting to cause a bank not to file required currency transaction reports (CTRs) concerning currency transactions exceeding $10,000. The Court recognized that the word “structure” is contained in 31 U.S.C. § § 5423(a)(1), not in 5324(a)(3), the statute under which Leon was charged and convicted, and that the parties used the term “structuring” during trial. But both statutes are said to refer to a “structuring” transaction. As a result, there was no “plain error.” The Court also rejected a sufficiency of the evidence challenge.

Hernandez-Alberto: Incompetency claim tolls habeas limitations period

In Hernandez-Alberto v. Sec., Fla. Dep’t of Corrections, No. 14-14092 (Nov. 4, 2016), the Court held that, for purposes of the statute of limitations governing federal habeas petitions, a properly filed Florida postconviction petition claiming incompetency remains “pending” through the final termination of the postconviction proceedings despite the state court’s having found the prisoner competent before the end of those proceedings. Because the petitioner’s application was properly filed, and remained so throughout the period of his postconviction proceeding, it tolled the deadline to file his federal habeas petition.

Fritts: 1989 Florida robbery qualifies as ACCA "crime of violence"

In U.S. v. Fritts, No. 15-15699 (Nov. 8, 2016), the Court held that a 1989 armed robbery conviction in violation of Fla. Stat. § 812.13 qualified as a “crime of violence” under the Armed Career Criminal Act (“ACCA”). The Court noted that in U.S. v. Dowd, decided in 2006, it had held that a 1974 conviction for armed robber was a violent felony under ACCA. Under Dowd, a Florida armed robbery conviction qualifies under ACCA’s elements clause. The Court rejected the argument that the Supreme Court’s decision in Curtis Johnson altered the analysis. The Court further noted that U.S. v. Lockley, decided in 2011, had held that a 1991 armed robbery qualified as a crime of violence under the elements clause of the career offender Guideline. Lockley’s reasoning also governed Fritts’ 1989 conviction. The Court rejected the argument that, under Florida law, prior to 1997, only the slightest force was sufficient to convict a defendant of Florida robbery. The Court held that, to the contrary, the robbery statute required resistance that is overcome by the physical force of the offender.

Hughes: No speedy trial violation

In U.S. v Hughes, No. 14-14181 (Nov. 4, 2016), the Court rejected the defendant’s argument that his prosecution for being a felon-in-possession of a firearm should have been dismissed on Speedy Trial Act grounds. The Court found that the oral, pre-trial motion of the government for the detention of the defendant automatically triggered an excludable period from that day until the conclusion of the hearing on that motion. As a result, no Speedy Trial Act violation occurred. The Court rejected the argument that the period of delay was caused by the defendant’s non-excludable motion for a continuance. The Court also rejected Hughes’ claim that a juror was struck in violation of Batson. The government explained that it struck the juror because he had committed a felony and violated the terms of his resultant probation; these were not facially discriminatory reasons. The Court also rejected a Crawford v. Washington challenge to the admission of statements by a 911 caller. Citing Davis v. Washington, the Court explained that the 911 caller’s statements were non-testimonial. The Court further ruled that a jury instruction that told the jury that it took account of a defendant’s false exculpatory statement did not violate Hughes’ right to remain silent, when evidence was introduced that Hughes (falsely) denied knowledge of the firearm that was found by law enforcement. A false statement by a defendant may be considered as substantive evidence of guilt.

Campo: Circumstantial evidence supports murder conviction

In U.S. v. Campo, No. 14-15541 (Nov. 1, 2016), the Court affirmed the convictions and sentences of a defendant convicted of murder, firearm trafficking, and firearm possession. The Court rejected Campo’s challenge to the sufficiency of the evidence, noting the circumstantial evidence that supported the verdict of conspiracy to murder. The evidence showed that Campo intended to kill a former gun trafficking accomplice in order to prevent him from communicating with police about the scheme. Campo bragged about the killing almost a year after the fact. Cell phone records placed Campo’s phone near the scene of the crime at the time of the murder. DNA evidence also supported the verdict. Ballistics tests matched the firearms that were used in the murder to the type of barrel Campo used on his firearm. Sufficient evidence also supported the firearm trafficking conviction. On plain error review, the Court rejected the argument that, under Fed. R. Evid. 701, the victim’s brother should not have been allowed to testify that when he called police after seeing blood in a warehouse, he told police that he thought that Campo had killed his brother. The Court noted that this opinion testimony was based on the brother’s perceptions at the time, and therefore admissible. Under Fed. R. Evid. 704, this testimony was not objectionable even though it addressed an ultimate issue in the case. On plain error review, the Court also rejected the argument that it was a Double Jeopardy violation to convict Campo of causing the death of a person while using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(j), and also of the lesser offense of using a firearm in furtherance of a crime of violence, in violation of § 924(c). The Court noted the absence of Supreme Court caselaw supporting this argument, and Circuit precedent suggesting it was without merit.

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.