Baptiste: Diversionary Disposition to Withheld Adjudications Get One Criminal History Point under 4A1.1(c), not Two Points Under 4A1.1(b)

In United States v. Baptiste, No. 16-10781 (Nov. 28, 2017) (Rosenbaum, Wilson, Titus), the Court held that the district court incorrectly calculated the defendant's criminal history category and therefore vacated the sentence.

On appeal, the parties framed their arguments around whether a Florida court's imposition of a sentence of "198 days time served," referring at least predominately to the defendant's time in immigration custody, qualified as a "prior sentence of imprisonment" under 4A1.1(b) (warranting two points).  However, the Court found it unnecessary to reach that issue, because circuit precedent established that his conviction warranted only a single point under 4A1.1(c), since adjudication had been withheld.  While there was an exception to that rule for diversionary dispositions, that exception applied only to 4A1.1(c), not 4A1.1(b).  Therefore, he could not have received two points under the latter provision.  And, while he did receive a single point under 4A1.1(c) under the diversionary exception, that single point changed his criminal history category, the Court vacated the sentence and remanded for re-sentencing.

Alicea: New York Certificate of Disposition Sufficient to Prove Prior Conviction

In United States v. Alicea, No. 16-17545 (Nov. 9, 2017) (Ed Carnes, Tjoflat, William Pryor) (per curiam), the Court upheld the calculation of the defendant's guideline range.

First, agreeing with two other circuits, the Court held that a New York certificate of disposition was sufficient evidence to establish that the defendant had a prior serious drug offense.  The Court rejected his assertion that the certificate was insufficient because it was signed by an unidentified court clerk and mistakenly transposed the numbers of his birthday.

Second, and for purposes of calculating his criminal history score, the Court rejected his assertion that the government failed to provide reliable evidence to prove his three New York drug convictions.  The Court already addressed the argument with regard to one of the convictions.  With regard to the other two, it was undisputed that both convictions bore an identification number identical to Alicea's.  And while the arrests in those cases were made under different names, those names were known aliases of the defendant.  The Court alternatively concluded that any error was harmless, because his criminal history score would have remained the same in light of other convictions not challenged on appeal.

Davis: Alabama Sexual Abuse by Forcible Compulsion Does Not Satisfy ACCA's Elements Clause

In United States v. Davis, No. 16-10789 (Nov. 7, 2017) (Ed Carnes, Rosenbaum, Higginbotham), the Court "reluctantly" held that the Alabama offense of first degree sexual abuse by forcible compulsion did not satisfy the ACCA's elements clause.

The Court first found that the Alabama first-degree sexual abuse statute was divisible on its face, enumerating two separate crimes: sexual abuse by forcible compulsion, and sexual abuse of a person incapable of consent.  The defendant's plea colloquy revealed that he had been convicted of the former.  The Court, however, rejected the defendant's further argument that sexual abuse by forcible compulsion was itself divisible: although there are three ways that a defendant could engage in forcible compulsion, those were means, not elements, because the jury did not need to agree on which the defendant committed.'

Surveying Alabama law, the Court then concluded that sexual abuse by forcible compulsion did not necessary require the use of violent force under Curtis Johnson.  That was so because case law in Alabama made clear that one could commit the offense merely where an authority figure implies a threat of disciplinary action against a child, and not all such disciplinary actions involve violent force.  The Court noted that, although the defendant did not cite the key Alabama decision in the district court, he had sufficiently preserved his objection to the prior conviction, and a party does not forfeit an issue merely by failing to cite a specific case supporting that issue.  In a final footnote, the Court noted that its decision was consistent with the en banc decision in Vail-Bailon because, in that case, the defendant was relying on far-fetched non-violent hypotheticals that had never been prosecuted, whereas Alabama did actually prosecute sexual abuse involving authority figures threatening children.  Also, unlike this case, there was no state supreme court decision indicating that the state would apply to the non-violent scenarios.

Judge Rosenbaum concurred with the exception of the majority's final footnote discuss Vail-Bailon.  She reiterated her disagreement that the non-violent scenarios posited in Vail-Bailon were far-fetched, and that there was no state supreme court decision in that case supporting such an application.

Burgess: Court May Not Sua Sponte Invoke 2255-Waiver Provision Where Government Fails To Do So

In Burgess v. United States, No. 15-12045 (Nov. 6, 2017) (Rosenbaum, Julie Carnes, Schlesinger), the Court held that a district court is not permitted to sua sponte invoke a 2255-waiver provision in a plea agreement to dismiss a 2255 motion where the government fails to raise that defense in its response.  The court limited its holding to collateral-waiver provisions. 

Judge Carnes concurred, agreeing with the majority's conclusion, but emphasizing the narrowness of the opinion.  She pointed out that nothing prevents a district court from sua sponte directing the parties to address the waiver issue before the government responds.  And the government may seek to amend its response to belatedly add a waiver defense, subject to the court's discretion.

Longoria: Substantive and Conspiracy Drug Distribution Convictions Can Occur on Separate Occasions for ACCA Purposes

In United States v. Longoria, No. 16-17645 (Nov. 1, 2017) (Tjoflat, Marcus, Jordan) (per curiam), the Court upheld the defendant's ACCA sentence.

The Court found that the defendant's serious drug convictions occurred on separate occasions.  To reach that conclusion, the Court held that a drug distribution offense may occur on a separate occasion from an overlapping conspiracy to distribute that drug.  In that case, the Court relied on Shepard documents to find that the substantive and conspiracy convictions were clearly defined and occurred on separate occasions.

The defendant's remaining arguments were foreclosed by binding precedent.  Specifically, the defendant argued that the dates of his prior convictions were non-elemental facts that could not be considered under Shepard, but that argument was foreclosed by Weeks.  Second, and relatedly, the Court held that there was no Fifth or Sixth Amendment violation by determining that the convictions occurred on separate occasions.  Third, and finally, the binding precedent foreclosed any argument that his 922(g) conviction was unconstitutional under the Commerce Clause.

Mathews: Failed Drug Test Does not Categorically Preclude Reduction for Acceptance of Responsibility

In United States v. Mathews, No. 16-11191 (Oct. 30, 2017) (Hull, Jordan, Gilman), the Court considered three Guideline calculation issues, and it ruled in the defendant's favor on one.

First, the Court upheld the application of the enhancement in 2J1.2(b)(3) for altering a substantial number of records, or, alternatively, altering essential or especially probative records.  The Court upheld the increase under the latter option, because the defendant altered a medical patient's records from the day of his death, which was essential to and obstructed the VA's investigation.  The Court found irrelevant  the defendant's subjective intent as to why he altered the records; it mattered only that he selected those records to destroy or alter.

Second, the Court upheld the application of the vulnerable-victim enhancement in 3A1.1(b)(1).  The victim was 76 years old and recovering from heart surgery, and it was irrelevant whether the defendant "targeted" the patient based on those infirmities; it required only that the defendant knew or should have known that the victim was vulnerable.  The Court further rejected the defendant's argument that the only victim harmed by his computer and record-related convictions was the United States, not the patient.  It emphasized that a person can qualify as a victim even if the defendant's conduct exposes that person to a risk of harm that was reasonable foreseeable.  The defendant's conduct met that standard and qualified as relevant conduct.

Third, the Court found that the district court erred by believing that a failed drug test precluded a reduction for acceptance of responsibility as a matter of law.   The Court noted that the Guidelines did not include any conduct that categorically precludes a defendant from receiving a reduction.  The Court could not find the error harmless because it reduced the defendant's guideline range.  Accordingly, it vacated the sentence and remanded for the limited purpose of allowing the court to determine whether a reduction was warranted.

Dixon: Florida Battery by Strangulation is a Crime of Violence under the Elements Clause

In United States v. Dixon, No. 17-10503 (Oct. 23, 2017) (Marcus, Jordan, Rosenbaum), the Court, without holding oral argument, held that Florida battery by strangulation under Fla. Stat. 784.041(2)(a) was a crime of violence under the elements clause.

This offense prohibits intentionally impeding the victim's normal breathing/blood circulation by applying pressure on the throat or neck or by blocking the victim's nose or mouth, and creating a risk of great bodily harm.  The Court found that, based on the plain language of the statute, this offense could not be committed without violent force -- that is, force capable of causing physical pain or injury.  The Court found that several non-violent hypothetical violations offered by the defendant -- including temporarily placing a pillow over a spouse's nose/mouth, removing a spouse's sleep apnea mask, or sitting on a spouse's chest -- were either "implausible" or would not actually violate the statute.  Other hypotheticals offered -- such as holding a spouse's head under water by applying pressure, and sitting in a spouse's chest and placing a hand over their mouth -- would require violent force.

George: Plain Error for Failing to Permit Allocution Before Imposing Sentence

In United States v. George, No. 16-14812 (Oct. 6, 2017) (Hull, Jordan, Gilman), the Court concluded that the district court did not clearly err by applying the firearm enhancement in USSG 2D1.1(b)(1) and premises enhancement in 2D1.1(b)(12), but did commit plain error by not allowing the defendant to allocute before it pronounced sentence.

As for 2D1.1(b)(1), the Court concluded that the enhancement was proper, because the defendant possessed a loaded firearm behind the reception area of a salon used as a front for his criminal activities.  Even though the criminal activities occurred in the back room of the salon, the government proved that the firearm was "present" at the location where he ran his criminal activities, and the defendant did not meet his burden to prove that it was "clearly improbable" that the gun was connected to the criminal activities. 

As for 2D1.1(b)(12), the Court applied a totality of the circumstances test adopted by other circuits to determine whether the defendant "maintained" the premises for drug trafficking.  The evidence supported the conclusion that a "primary purpose" of both the salon and an apartment was for drug distribution.  Thus, the Court upheld the enhancement.

As for allocution, the Court concluded that, merely by asking if there was "anything further from the other side," the district court did not fulfill its Rule 32 obligation to address the defendant personally in order to give him a chance to speak.  Relying on its recent decision in Doyle, the court found the error plain, observing that Rule 32 required the court to give the defendant a chance to speak before (not after already) imposing sentence, and the Court presumed prejudice under Doyle because he was not subject to a mandatory minimum sentence and thus could have varied downward.  The Court distinguished a former Fifth Circuit decision upon which the government relied.  Accordingly, the Court vacated the sentence and remanded for allocution only.

Green: Florida Felony Battery is a Violent Felony

In United States v. Green, No. 14-12830 (Sept. 29, 2017) (Julie Carnes, Jordan, Robreno), the Court revised its earlier panel opinion from December 2016 in light of the recent en banc decision in Vail-Bailon. 

Relying on Vail-Bailon, it held that the defendant's Florida felony battery conviction satisfied the elements clause.  The panel removed its earlier holding that the "touching or striking" component of Florida battery law was divisible, and that the defendant's offense involved a striking under the modified categorical approach.  That discussion was no longer necessary in light of Vail-Bailon's categorical holding.  The remainder of the original panel opinion was unmodified; the summary of that original opinion can be found here: http://defensenewsletter.blogspot.com/2016/12/green-harmless-rule-404b-errors.html

Griffith: Evidentiary Hearing Required on IAC Claim Alleging Failure to Research Drug Quantity Determination

In Griffith v. United States, No. 15-11877 (Sept. 26, 2017) (Ed Carnes, Rosenbaum, Dubina), the Court concluded that the district court erred by failing to hold an evidentiary hearing a 2255 motion alleging ineffective assistance of counsel.

The motion alleged that trial counsel was ineffective by failing to argue that some waste materials in the drug manufacturing process should not have been included as a “mixture or substance” in the drug quantity determination.  After reviewing the case law on that subject in depth, it concluded that, accepting the allegations as true, counsel was deficient for failing to research circuit precedent on the issue--namely, whether certain liquids used to make methamphetamine were "usable" and thus countable.  The Court also concluded that this deficient performance was prejudicial because the drug quantity determination raised the guideline range and triggered a mandatory minimum penalty, and there was nothing in the record indicating that these errors did not affect his sentence.   In footnote 14, the Court said that this conclusion was consistent with the recent decision in Beeman, because, if his allegations were proven and he faced an erroneously high guideline range, then he would have likely received a lower sentence.  After an extended discussion, the Court found it unnecessary to address the applicability of Molina-Martinez to the 2255 context.

Beeman: Initial 2255 Motion Bringing ACCA/Johnson Claim Fails to Meet Burden of Proof to Show that Sentencing Court Relied on Residual Clause

In Beeman v. United States, No. 16-16710 (Sept. 22, 2017) (Julie Carnes, Edmondson, Kathleen Williams), the Court held that an initial 2255 movant bringing an ACCA Johnson claim failed to meet his burden of proof, because he could not prove that it was more likely than not that the sentencing court relied on the residual clause, as opposed to another clause. 

As an initial matter, the Court agreed that the 2255 motion was in part timely under 2255(f)(3). His motion alleged that his prior conviction for Georgia aggravated assault was no longer a violent felony, both because it did not satisfy the elements clause after Descamps and because it did not satisfy the residual clause after Johnson.  Although the Court found that the Descamps aspect of that claim was untimely, it found that the Johnson aspect was timely.

However, it affirmed on the ground that the movant could not meet his burden to show that the sentencing court had relied on the residual clause.  The Court relied heavily on the burden of proof in 2255 proceedings being on the movant, and it refused to place that burden on the government merely because sentencing courts did not specify the clause on which they relied.  To meet the burden of proof on a Johnson claim, the movant must show that it was more likely than not that the sentencing court relied on the residual clause.  Where the record is inconclusive in that regard, or where it is just as likely that the court relied on the residual clause as on another clause, then the movant cannot meet his burden.  This is a fact-specific question in each case.  In that case, the sentencing record was silent, and there was no precedent at the time of sentencing holding or suggesting that the prior conviction qualified only under the residual clause.  In that regard, the Court rejected the movant's argument that the residual clause had served as a default for many statutes.  In effect, the Court adopted the earlier dicta in Moore over the earlier dicta in Chance, but applied that reasoning in the context of an initial (not successive) 2255 motion.

Judge Williams dissented.  She opined that a movant can meet his burden under Johnson to show that he was sentenced under the residual clause by showing that his ACCA enhancement could not have been properly sustained on any other clause.  Because the prior conviction in that case likely did not satisfy the elements clause, she found that he had met his burden of proof.  She concluded: "I fear that the practical effect of today's opinion is that many criminal defendants like Beeman who were, in fact, sentenced under a constitutionally infirm statute will be denied their right to seek relief to which they may very well be entitled by the holdings of the Supreme Court."

Williams: Upholding 6am Search Pursuant Arrest Warrant and as a Valid Protective Sweep

In United States v. Williams, No. 16-16444 (Sept. 20, 2017) (Tjoflat, Hull, William Pryor) (per curiam), the Court affirmed the denial of the defendant's motion to suppress.

First, the Court concluded that the search of an outbuilding adjacent to the defendant's residence was lawful, because the search was a reasonable entry pursuant to an arrest warrant for the defendant.  The totality of the circumstances supported the agents' belief that the defendant lived on the property, either in the main residence or in the outbuilding (both were possible living spaces), and that he was present in one of those two buildings at the time the warrant was executed (since his car was there and it was early in the morning).

Second, the Court alternatively concluded that the search of the outbuilding, while the defendant was being arrested in the main residence, was a valid protective sweep.  The outbuilding was a separate structure 20 feet away, there was noise indicating that drug distribution activities might be occurring on the property, and there were three cars parked in the driveway, suggesting that more people might be on the premises and pose a danger.

Finally, the Court, applying plain error, rejected the defendant's argument that an arrest warrant executed at approximately 6am was invalid.  The agent testified that the warrant was not executed before 6am, the beginning of daytime hours under Rule 41.  And, in any event, even if the warrant was executed a few minutes before 6am, there was no evidence that the agents did do so deliberately or that his arrest would not have otherwise occurred.  Thus, any technical non-compliance with Rule 41 would not require suppression.

Masino: Indictment Sufficiently Alleged Federal Gambling Offense Based on Florida Bingo Statute

In United States v. Masino, No. 16-15451 (Sept. 7, 2017) (William Pryor, Ed Carnes, Moore), the Court reversed the dismissal of an indictment charging a violation of the federal gambling statute.

The issue was whether an indictment alleging a violation of Florida's bingo and gambling statutes sufficiently alleged an element of the federal gambling statute--namely, that the business is an illegal gambling business, which turned on whether it "is a violation" of state law.  The Court concluded that it did, because there were at least some violations of Florida's bingo statute that could render the business an illegal gambling business under federal law.  For example, the business would be illegal if it allowed charities to sponsor the event without their direct involvement, or if it did not return all bingo proceeds to the players.  The Court therefore did not address whether Florida gambling statutes could serve as a basis for upholding the indictment.

One defendant cross-appealed regarding the court's failure to dismiss the count of the indictment in its entirety.  The Court, however, declined to exercise its discretion to consider that cross appeal under the doctrine of pendant appellate jurisdiction.

Focia: Rejecting Second Amendment Challenge to 922(a)(1) and (a)(5), and Upholding "Alternative Sentence"

In United States v. Focia, No. 15-15653 (Sept. 6, 2017) (Ed Carnes, Rosenbaum, Dubina), the Court affirmed the convictions and sentence for dealing firearms without a federal license, in violation of 18 U.S.C. 922(a)(1)(A), and selling firearms to unlicensed residents of other states, in violation of 18 U.S.C. 922(a)(5).

The defendant challenged the sufficiency of the evidence on his 922(a)(5) convictions on two grounds.  First, he argued that the government failed to prove that he and the transferee were not residents of the same state.  But the Court identified various pieces of circumstantial evidence suggesting that he resided in Alabama, while the transferees resided in other states.  Second, he argued, for the first time on appeal, that the government failed to prove that he lacked a firearms license.  But the Court, applying a deferential standard, found that it did, relying on the defendant's own testimony.

The defendant challenged the jury instructions for the 922(a)(1)(A) conviction, arguing that the pattern instruction given allowed him to be convicted for conduct not criminalized under the statute.  The Court found that the statute was designed to criminalize the selling of guns as a business (whether as the sole means of income or as a side business), but not to criminalize sporadic selling or selling merely to improve or modify a personal collection.  The defendant's motivation was the test.  The Court agreed with the defendant that, by omitting the exclusion of "hobbyist" firearm dealing, the pattern instruction would allow the jury to convict a defendant for non-criminalized conduct.  It recommended that the instruction be modified to clarify that hobbyist activities are excluded.  However, the Court found the error harmless in this case, because the evidence reflected that the defendant was not a mere hobbyist, but rather was a savvy dealer who sold weapons on the Dark Web for profit.

Next, the defendant challenged the constitutionality of 922(a)(1) on the ground that it represented a "prior restraint" on his Second Amendment rights by criminalizing unlicensed firearms dealing.  The Court rejected that argument, finding that the First Amendment "prior restraint" doctrine does not apply to the Second Amendment, joining five other circuits.  

The Court also rejected the defendant's constitutional challenge to 922(a)(5), finding it less burdensome on Second Amendment rights than other statutes it had previously upheld.  This statute prohibited only the transfer of a firearm from an unlicensed person in one statute to an unlicensed person in another state, which, unlike other statutes previously upheld, did not completely prohibit the possession or acquisition of a firearm.  

Finally, the defendant raised three challenges to the calculation of his guideline range, but the Court found it unnecessary to address them.  Because the district court ruled that, even if those challenges were successful, he would have imposed the very same 51-month sentence, any guideline error was harmless.  That was so even though the 51-month sentence would have required an upward variance if the guideline challenges were valid.  The Court found that this alternative sentence was sufficiently justified and substantively reasonable under the 3553(a) factors.

Jeri: Failure to Continue Airport Trial in Light of Late Disclosure was Harmless Error

In United States v. Jeri, No. 16-11418 (Sept. 5, 2017) (Hull, Marcus, Clevenger), the Court upheld the defendant's drug-trafficking convictions.

The defendant first challenged the district court's denial of a motion to continue when the government, on the morning of trial, turned over a video taken at the airport showing the drugs removed from the defendant's luggage.  The Court agreed that the denial of a continuance was error and counseled more patience in the future.  But it found that the defendant "has not come close" to showing substantial or specific prejudice, because the video only showed the drugs after they were removed from the luggage.  Thus, they did not show that the drugs were removed only from the defendant's checked bags, as opposed to his carry on bag, and the video did not otherwise exculpate him.

The Court rejected the defendant's remaining arguments.  It rejected a Brady challenge to the government's late disclosure of the video on the ground that it was neither exculpatory nor material to the defense, and it rejected a due process challenge to the exclusion of the video at trial on similar grounds.  

The Court rejected the exclusion from evidence of controlled calls between the defendant and his handler on the ground that they were hearsay, irrelevant, and not admissible under the rule of completeness.  And, in any event, any error was harmless.  

The Court next rejected the defendant's argument that the court limited his cross examination of two government witnesses, finding that the exclusion was proper on hearsay grounds, and any error was harmless in any event.  

Next, the Court rejected the argument that a law-enforcement lay witness crossed the line into giving expert testimony by drawing on his experience interviewing drug couriers, and, again, it found that any error was harmless.  The Court also rejected the argument that the witness had opined on the ultimate issue in the case by opining that the defendant's interview answers were not truthful.  The Court also rejected an argument that a government witness impermissibly testified about drug-courier profiles, but rather testified only about street value, quantities, methods, and general drug mule techniques, etc..., and did not testify about the defendant's knowledge.

The Court rejected the argument that the court erred by giving a deliberate ignorance instruction.  It found that ample evidence supported the instruction.  It also found ample evidence of actual knowledge, and the court was permitted to give both instructions.

Finally, in light of the rulings above, the Court rejected the defendant's cumulative error argument.

Vail-Bailon: Florida Felony Battery is Categorically a Crime of Violence Under the Elements Clause

In United States v. Vail-Bailon, No. 15-10351 (Aug. 25, 2017) (Ed Carnes, Tjoflat, Hull, Marcus, William Pryor, Julie Carnes), the en banc Court -- in a closely divided 6-5 opinion -- held that Florida felony battery categorically qualifies as a crime of violence under the elements clause.

The majority found that Florida felony battery categorically met the definition of "physical force" in Curtis Johnson.  The Court concluded that, because Florida felony battery requires the causation of great bodily harm, it was necessarily "capable" of causing pain or injury.  It therefore necessarily required physical force under Curtis Johnson.  In so concluding, the Court rejected the argument that "physical force" under Curtis Johnson required force "likely" to cause pain or injury.  And the Court rejected that argument that Florida felony battery could possibly be committed by only a slight touching.  Under this reasoning, it would appear that Florida aggravated battery would also qualify under the elements clause.  Notably, however, the Court did not decide whether the Florida battery statute was divisible, since it found that felony battery was categorically a crime of violence, even when committed by a touching.  This may leave open the possibility of challenging simple battery, battery on a law-enforcement officer, and any other simple-battery offenses that do not require the causation of great bodily harm.  The Court also found that its conclusion complied with Leocal because felony battery required an intentional touching.

Judge Wilson, joined by Judges Martin, Jordan, Rosenbaum, and Jill Pryor, dissented.  He argued that Curtis Johnson's definition of "physical force" required a certain "degree of force," not a "capability" of causing pain or injury. He emphasized that even the slightest touching has the capability of causing pain or injury, and Curtis Johnson already held that such conduct did not satisfy the elements clause.  And he concluded that Florida felony battery could indeed be committed by a mere touching, the exact same degree of force required to commit simple battery.  The only difference with felony battery is that the mere touching unintentionally happens to cause great bodily harm; but he found that this result element was irrelevant because it does not change the degree of force necessary to commit the offense.

Judge Rosenbaum, joined in part by Judges Martin and Jordan, issued a separate dissent, adding some arguments bolstering Judge Wilson's dissent.  In addition, and writing only for herself, she argued that the unintentional causation of bodily harm element of the felony battery statute also did not satisfy the "use" prong of the elements clause under Leocal, Castleman, and Voisine, because, although it required an intentional act, it did not require an intent to injure or engage in an act that has a substantial likelihood of injuring another.

White: Full Court Declines to Rehear En Banc Whether Alabama Cocaine Trafficking is a "Serious Drug Offense" Under ACCA

In United States v. White, No. 14-14044 (Aug. 24, 2017), the full Court voted not to rehear en banc a case presenting the question whether Alabama cocaine trafficking was a "serious drug offense" under the Armed Career Criminal Act.

Judge Martin, joined by Judge Jill Pryor, dissented from the denial of rehearing.  In a lengthy opinion, she argued that "mere possession" offenses do not qualify as a serious drug offense for two reasons.  "First, it forces federal judges to make empirical determinations that are beyond our institutional competence.  And second, it directly contradicts the Supreme Court's interpretation of the ACCA in Taylor, because it causes federal judges in this circuit to rely on widely varying state labels and policy judgments when they impose ACCA sentences.  The result is that the exact same conduct can support ACCA sentences that are more (or possibly less) harsh based solely on the state where the conduct occurred."

Tejas: "Special Rule" in Commentary Presuming Number of Victims for Mail Theft Inapplicable Where Evidence is to the Contrary

In United States v. Tejas, No. 16-16336 (Aug. 23, 2017) (Martin, Rosenbaum, Anderson) (per curiam), the Court affirmed in part and reversed in part the defendant's 366-day sentence following a conviction for mail theft.

The defendant first argued that the court erroneously enhanced his sentence under U.S.S.G. 2B1.1(b)(2)(A)(i) based on the number of victims.  The Court agreed.  Although there was "special rule" in the commentary presuming that a mail theft offense involves at least 10 victims where, as here, the offense involved a postal delivery vehicle, the Court found that applying that rule in this particular case would conflict with, and was therefore trumped by, the plain language of the text of the Guideline, which focused on the actual number of victims.  That was so because the evidence in that case made clear that there were, at most, only two victims--the postal employee and the intended recipient of the stolen package.

The Court rejected the defendant's remaining sentencing arguments.  It found that the court properly applied the enhancement for theft "from the person of another" under 2B1.1(b)(3), because the defendant pushed the postal employee aside to obtain a package that was still within arms' reach of the employee.  The Court found that the court properly applied an enhancement under 3A1.2 for targeting a government officer or employee, which requires that the defendant be motivated by the employee's status, because the case was sufficiently analogous to an earlier case involving the robbery of a postal employee where he demanded money orders.  Finally, the Court found that the court properly refused to apply the two-level reduction for acceptance of responsibility because, although the defendant was acquitted of robbery and assault, the court found by a preponderance of the evidence that he did push the postal employee, and the defendant affirmatively insisted that he had not.

Blake: District Court Had Authority Under All Writs Act to Order Apple to Bypass iPad Security Features

In United States v. Blake, No. 15-13395 (Aug. 21, 2017) (Ed Carnes, Fay, Parker), the Court upheld the defendants' child sex trafficking-related convictions and sentences.

First, the defendants argued that the district court should have severed child sex trafficking charges from sex trafficking by coercion charges.  The Court upheld the court's failure to do so, finding that a significant part of the latter charges were also relevant to the former charges, and there was not sufficient prejudice because both crimes were inflammatory.

Second, the defendants argued that that district court's order requiring Apple to help bypass an iPad's security features exceeded the court's authority under the All Writs Act.  The Court initially found that the defendants had both Article III standing (because the evidence gathered was used to convict them) and Fourth Amendment standing (because they had an expectation of privacy in the iPad).  The Court also assumed without deciding that suppression would be the proper remedy, and that they had prudential standing to raise a third party's (Apple) rights.  The Court, however, concluded that the order did not exceed the court's authority under the All Writs Act, applying the multi-factor test from the Supreme Court's 1977 decision in United States v. N.Y. Telephone Company.

Third, the Court rejected a challenge to warrants used to search emails and a Facebook account.  The Court found that the search warrants were supported by probable cause, and that the email warrants satisfied the particularity requirement. The Court, however, expressed serious doubt that the Facebook warrants satisfied the particularity requirement, because they unnecessarily encompassed every kind of activity on the account. But the Court ultimately did not decide the issue.  Because the issue was a close one, the Court concluded that the good-faith exception to the exclusionary rule applied.

Fourth, a defendant argued that one of the victims should not have been permitted to testify about her difficult childhood.  The Court rejected argument, finding it both relevant under Rule 401, because it made the fact that she ran away from home to prostitute herself more probable.  And there was no unfair prejudice requiring exclusion under Rule 403.

Fifth, a defendant argued that the evidence was insufficient that she trafficked one of the victims, because she did not have a sufficient opportunity to observe that the victim was a minor.  The Court rejected that argument, finding that they had five or six interactions, and one of those interactions was considerable.

Sixth, the Court rejected the defendants' sentencing arguments.  One defendant argued that he should not have received the enhancement in U.S.S.G. 2G1.3(b)(2)(B) for unduly influencing a minor to engage in prohibited sexual conduct, because the minors contacted him, not the other way around.  The Court rejected that argument because the commentary provided for a presumption of undue influence where the defendant is more than ten years older than the victim, and the defendant did not overcome that presumption. The Court also rejected the defendants' impermissible double-counting argument under U.S.S.G. 2G1.3(a)(2) and 2G1.3(b)(4), finding that they were punished only once for the fact that sexual conduct did in fact occur. Lastly, the Court rejected the defendant's substantive reasonableness arguments, as they both received downward variances.

Mathurin: No 8th Amendment Violation for 685-Month Sentence Imposed on a Juvenile

In United States v. Mathurin, No. 14-12239 (Aug. 18, 2017) (Julie Carnes, Wilson, Hall), the Court affirmed the defendant's conviction and 685-month sentence for multiple armed robbery and carjacking crimes committed while a juvenile.

As to the conviction, the Court first rejected the defendant's various suppression challenges, finding that: 1) there was probable cause to support the defendant's arrest; 2) because the defendant was advised that no promises or negotiations would be made in a meeting, statements made during that meeting were not made in the course of plea negotiations and thus were not inadmissible under Rule 410; 3) inculpatory statements made by the defendant after his arrest were voluntary, even though there was a delay in notifying his mother of his arrest, the waiver form he signed did not indicate he had a right to attorney prior to questioning, and he was questioned alone after he was appointed an attorney; and 4) there was no basis to suppress eyewitness identifications because there was no evidence to show that the procedure was unduly suggestive.

Second, the Court found that the district court properly dismissed the defendant's original indictment without prejudice under the Speedy Trial Act, because the defendant's offenses were extremely serious, the government did not intentionally delay the filing of the indictment, and the defendant would suffer only minimal prejudice from the delay.

Third, the Court found that the second indictment was not barred by the statute of limitations.  By statute, where an indictment is dismissed after the statute of limitations expires, the government may return a new indictment within six months of the dismissal.  Here, the second indictment was filed ten days after the dismissal.

Fourth, the Court found no reversible evidentiary error by allowing the prosecution to fully recount the robberies, including the involvement of a firearm, even though the defendant was acquitted of accompanying 924(c) counts during an earlier trial.  The Double Jeopardy Clause did not prohibit probative evidence that is otherwise admissible simply because it is related to criminal conduct for which the defendant has been acquitted.  The Court also found that there was no reversible prosecutorial misconduct at closing.

As to the sentence, the Court rejected the argument that the defendant's 685-month sentence violated the Eight Amendment under Graham v. Florida.  In a lengthy analysis, the Court assumed that Graham did apply to a term-of-years sentence exceeding one's life span, but then concluded that, factoring in good time credit, the defendant had an actuarial life expectancy that would precede his possible release date, even using the lower life-expectancy for African American males.  Thus, there was a possibility of release before expiration of his sentence.

The Court also rejected the defendant's argument that the sentence was vindictive, imposed as punishment for successfully appealing his initial conviction (for which he received a 492 month sentence), in violation of North Carolina v. Pearce.  The Court emphasized that the re-sentencing occurred before a different judge, and therefore Pearce's presumption of vindictiveness did not apply, and the defendant could not show actual vindictiveness.

Judge Wilson issued a one-sentence concurring opinion: "I concur in the result."