St. Hubert: Hobbs Act Robbery and Attempted Hobbs Act Robbery are Crimes of Violence Under Both Clauses in 924(c)

In United States v. St.Hubert, No. 16-10874 (Nov. 15, 2018) (Hull, Marcus, Anderson), the Court sua sponte modified its earlier opinion in part and applied the recent en banc decision in Ovalles.

The Court reinstated without change its earlier analysis rejecting the government's argument that the defendant's guilty plea waived his argument that his convictions were not crimes of violence.  It also reinstated without change its holding that Hobbs Act robbery qualified as a crime of violence under the elements clause in 924(c)(3)(A). 

Applying Ovalles' conduct-based approach, the Court held that the defendant's Hobbs Act robbery conviction satisfied the residual clause in 924(c)(3)(B).  Reviewing the facts admitted at the plea hearing -- namely, brandishing a firearm and threatening to shoot store employees during a robbery -- the Court concluded that his offense involved a substantial risk that physical force may have been used against a person or property.

The Court also held that the defendant's attempted Hobbs Act robbery conviction was a crime of violence under both the elements clause and residual clause in 924(c).  As to the residual clause, the Court again reviewed the facts admitted at the plea hearing -- which involved brandishing a firearm, holding it against one employee's side while directing another to open the safe, but fleeing before he could take any money -- and concluded that this conduct involved a substantial risk that physical force might be used against a person or property.  Alternatively, the Court reiterated and slightly modified its holding that attempted Hobbs Act robbery satisfied the elements clause because it necessarily involves the attempted use of force or threatened force.

In re Garrett: Johnson and Dimaya Do Not Authorize Successive 2255 Motions in 924(c) Cases

In In reGarrett, No. 18-1380 (Nov. 2, 2018) (Wiliam Pryor, Hul, Julie Carnes), the Court denied an application for authorization to file a second or successive 2255 motion based on Johnson and Dimaya.

Given the en banc Court's decision in Ovalles that 924(c)(3)(B) is not unconstitutionally vague after Dimaya, the Court held that the applicant failed to satisfy the gatekeeping crtieria in 2255(h), because there was no new rule of constitutional law, made retroactive by the Supreme Court, that applied to his claim.  The Court made clear that its ruling would apply to all second or successive applications involving a 924(c) claim based on Johnson and Dimaya.

Hernandez: Rules of Evidence Inapplicable in 851 Proceeding

In United States v. Hernandez, No. 17-15666 (Oct. 26, 2018) (Wilson, William Pryor, Anderson), the Court affirmed the defendant's 240-month mandatory minimum drug-related sentence under 21 U.S.C. 841(b).

First, the Court rejected the defendant's argument that the Rule of Evidence applied in an 851 proceeding to determine whether the defendant has a prior conviction triggering the mandatory  minimum.  Rather, that proceeding was a miscellaneous proceeding akin to a sentencing hearing, in which the Rules did not necessarily apply.  As a result, it is up to the district court whether to apply the Rules or instead to determine whether the evidence satisfies a "sufficient indicia of reliability" standard, which the evidence in this case did.

Second, the Court concluded that the district court committed plain error by employing a preponderance standard instead of the reasonable-doubt standard in the 851 proceeding.  However, the Court found that this error did not affect the defendant's substantial rights, because the evidence satisfied the reasonable-doubt standard.

Jones: Florida Second-Degree Murder is a Violent Felony under the ACCA's Elements Clause

In United States v. Jones, No. 17-12240 (Oct. 25, 2018) (Marcus, Tjoflat, Newsom), the Court held that Florida second-degree murder is a violent felony under the elements clause of the Armed Career Criminal Act.

The Court rejected the defendant's primary argument that the use of poison did not constitute the use of physical force.  Prior circuit precedent had rejected that exact argument in the context of Florida first-degree murder.  And the only difference between first and second degree murder pertained to the mental state, which the Court found made no difference to the elements-clause analysis. 

Carthen: Rule 608(b) Prohibits Impeachment by Contradiction, and Mandatory 924(c) Sentences Do not Violate Eighth Amendment

In United States v. Carthen, No. 16-17653 (Oct. 25, 2018) (Martin, William Pryor, Baldock), the Court affirmed the defendants' robbery and firearms convictions and sentences over multiple challenges.

First, the Court found sufficient evidence that one of the defendants conspired to commit a robbery and voluntarily participated in the robbery with a firearm.

Second, the Court found no plain error in admitting statements by the defendants' co-conspirator under the hearsay exception in 801(d)(2)(E).  The Court ruled that, when determining whether a conspiracy existed and whether the statement was made during the course of it, the court may rely on information provided by the co-conspirator as well as independent external evidence.  The Court found enough evidence of a conspiracy to satisfy the exception.

Third, the Court found no abuse of discretion under Rule 608(b) by excluding the testimony of two defense witnesses designed to show that the co-conspirator had lied in other judicial proceedings.  The Court reasoned that the Rule prohibited that evidence because it was designed only to make a general showing that the witness had a dishonest character.

Fourth, the Court held that the 924(c) sentencing scheme, resulting in a mandatory 57-term for the defendants here, did not violate the Eighth Amendment.  Although that sentence was 5-6 times what the guideline range would have been, the Court had upheld a mandatory sentence of 182 years in a prior 924(c) case, which was over 10 times the guideline range.  Because the defendant could not distinguish that prior case, the Court found that he failed to make a threshold showing of disproportionality.

Judge William Pryor concurred in full, but wrote separately to opine that the Court's Rule 608(b) precedents categorically prohibiting impeachment by contradiction were contrary to the current version of the Rule and the position taken by the majority of the other circuits.  He argued that, in an appropriate case where the issue was presented, the Court should hold that those precedents had been abrogated by the 2003 amendment to the Rule.

Garcia: Plainly Unconstitutional Resumption of Trial Absent Defense Counsel and Defendant Did not Require Reversal

In United States v. Garcia, No. 14-11845 (Oct. 19, 2018) (Marcus, Wilson, Graham (S.D. Ohio)), the Court affirmed the defendant's tax-related convictions.

The primary issue was whether reversal was required because the district judge resumed trial without the presence of either the defendant or defense counsel for 3 to 10 minutes, during which time the government introduced inculpatory testimony.  The parties agreed that this was obviously constitutional error, and, although the Court found it troubling, the Court held that the error did not warrant reversal because the defendant could not show prejudice.  Bound by the en banc decision in Roy, the Court determined that this was trial error, rather than structural error, and it therefore could not presume prejudice.  The Court also found that the plain error, rather than the harmless error, standard of review applied, because the defendant had numerous opportunities to contemporaneously object to the error and failed to do so.  And, while the result might have been different had the government bore the burden to show harmlessness beyond a reasonable doubt, the Court concluded that the defendant could not meet her burden show that the plain error affected her substantial rights in light of: the cumulative nature and brevity of the missed testimony, its irrelevance to the most hotly contested issued at trial, the strength of the government's case, and robust cross examination by the defense.

The Court rejected the defendant's remaining arguments, all of which were unpreserved as well.  First, it found that the indictment included all of the elements of a Klein conspiracy under 18 U.S.C. 371, and it was therefore legally sufficient on that count.  Second, although the court committed plain error by instructing the jury on an attempt theory that was not charged, that error did not affect her substantial rights because it was unlikely that the jury convicted her on such a theory.  Third, the defendant could not show that any erroneous instruction on the Klein conspiracy affected her substantial rights, especially given that the jury convicted her on the underlying substantive counts.  Fourth, the defendant invited the district court's failure to give a multiple objects/unanamity instruction for the conspiracy charge.  Fifth, the court properly instructed the jury on the "material" element of the substantive tax counts.  And, lastly, the court properly instructed the jury on "aiding and abetting," observing that the Supreme Court's decision in Rosemond clarified rather than changed the law on that point and did not render the pattern instruction incorrect.

Judge Wilson concurred.  He reiterated his dissenting view in Roy that the error here should be deemed structural, which would have precluded (rather than encouraged) the district judge from continuing his unconstitutional courtroom policies, but he recognized that Roy foreclosed that conclusion.  He disagreed with the majority, however, that plain error rather than harmless error review applied.  He nonetheless concluded that the government had met its burden to show that the error was harmless beyond a reasonable doubt.

Ovalles II: Attempted Carjacking is a Crime of Violence Under 924(c)(3)(A)

In Ovalles v. United States, No. 17-1072 (Oct. 9, 2018) (Tjoflat, William Pryor, Hull) (per curiam), the Court held that attempted carjacking is a crime of violence under the elements clause of 924(c)(3)(A).

Although the en banc Court held that Ovalles' attempted carjacking conviction satisfied the residual clause of 924(c)(3)(B) under a fact-based approach, the en banc Court remanded the case back to the panel.  The panel reinstated its original, alternative holding that attempted carjacking satisfies the elements clause under the categorical approach.  The Court reiterated its prior precedents holding that carjacking, including by intimidation, is a crime of violence, and reiterating its prior precedent on the analogous bank robbery statute.  The Court then explained that the attempt element did not result in a different conclusion because, under federal law, the defendant must have the specific intent to commit each element of the substantive offense and must take a substantive step towards committing that offense.  The Court reasoned that when an offense, if completed, satisfies the elements clause, then so does an attempt to commit that same offense.

Ovalles: 924(c)(3)(B) Requires a Conduct-Based Approach and is not Unconstitutionally Vague

In Ovalles v. United States, No. 17-10172 (Oct. 4, 2018) (en banc) (Newsom, joined by Ed Carnes, Tjoflat, Marcus, William Pryor, Rosenbaum, Branch, Hull), the Court held that the residual clause in 924(c)(3)(B) can plausibly be read to require a conduct-based -- as opposed to a categorical -- approach; it must be so read in order to avoid the constitutional vagueness problem that doomed 16(b) in Dimaya; and that clause is therefore not unconstitutionally vague.  (Note: Shortly before the opinion came out today, the government filed a cert. petition in cases out of the Fifth and Tenth Circuits asking the Supreme Court to review this issue, so today's decision will not likely be the last word.).

Judge William Pryor, joined by Judges Ed Carnes, Tjoflat, Newsom, and Branch, concurred to express the view that Congress should re-write recidivist statutes like the ACCA to restore the common-law role of the jury by requiring the government to prove to a jury that the defendant committed a prior conviction, and that the facts of the prior conviction involved the use of physical force.

Judge Martin dissented, explaining how the majority's decision was but the latest in a long line of decisions limiting the effect of Johnson.  Her "review reveals a body of law that has relentlessly limited the ability of the incarcerated to have their sentences reviewed. Decisions of this Court have left only a narrow path to relief for those serving sentences longer than the law now allows. Yet this narrow path is not mandated by decisions of the Supreme Court or by Acts of Congress. Indeed, this Court has withheld relief from prisoners even when precedent counsels otherwise." 

Judge Jill Pryor, joined by Judges Wilson, Martin, and Jordan, dissented, arguing that the residual clause in 924(c)(3)(B) was unconstitutional in light of Dimaya, which struck down the identical statute in 16(b), and the canon of constitutional avoidance could not save it because its text required application of the categorical approach.

Randolph: Successive 2255 Motion Based on Johnson Properly Dismissed Where Initial 2255 Motion Presented Johnson Claim

In Randolph v. United States, No. 17-10620 (Sept. 25, 2018) (Ed Carnes, Branch, Gayles), the Court affirmed the dismissal of a successive 2255 motion based on Johnson.

The Court ruled that dismissal was required under 2244(b)(1) because the movant raised a Johnson claim in his initial 2255 motion.  That also meant that the rule announced in Johnson was not "previously unavailable" to him, a requirement for successive motions.  That was so even though his first 2255 motion was filed before the Supreme Court declared Johnson retroactive in Welch.  The Court also ruled that, in the successive proceeding, the movant could not use Welch to challenge the correctness of the dismissal of his initial 2255 motion on procedural-default grounds.  Lastly, the Court rejected the movant's argument that it owed deference to its order authorizing the successive 2255 motion.

Phifer: Vacating Ethylone Conviction Because DEA Regulations Ambiguous

In United States v. Phifer, No. 17-10397 (Sept. 21, 2018) (Rosenbaum, Jordan, Dubina), the Court vacated the defendant's conviction for possession with intent to distribute ethylone.

The issue on appeal was whether ethylone was a "positional isomer" of butylone.  After a "crash course in organic chemistry," the Court concluded that the DEA's regulatory of definition of "positional isomer" did not unambiguously apply.  And, because this was a criminal case, the Court refused to defer to the DEA's interpretation of its own regulation.  The Court instructed the district court to conduct an evidentiary hearing on remand to determine the scientific meaning of "positional isomer," as used in the regulation.  The Court rejected the defendant's argument that re-trying him would violate double jeopardy.

Judge Jordan concurred, expressing concerns that the statute might be vague as applied to the defendant.

Oliva: No Speedy Trial Violation Where 23-Month Delay Between Indictment and Arrest Was Due to Government Negligence

In United States v. Oliva, No. 17-12091 (Sept. 18, 2018) (Wilson, Newsom, Vinson) (per curiam), the Court held that a 23-month delay between indictment and arrest, due to the government's negligence, did not violate the defendants' right to a speedy trial under the Sixth Amendment.

Applying Barker v. Wingo, the Court concluded defendant was required to prove actual prejudice because the first two Barker factors--the length of delay and the reason for delay--did not "weigh heavily" against the government.  The Court found no clear error in the district court's finding that the government's negligence was neither purposeful nor undertaken in bad faith, and the Court rejected the defendants' argument that the case law did not require such conduct.  The Court also found that, unlike the 2.5 year delay in a prior case involving a simple investigation, the 23-month delay for the more complex investigation here was not "inordinate."  The Court also found that the negligence, while worrisome, was not as egregious as in past cases because the government agent believed that another agency was responsible for the arrest, he was serving as a solo investigator for the first time and was unfamiliar with procedure, he quickly effectuated the arrest once he realized his mistake, and the prosecutor who secured the indictment left the office and was not replaced for more than a year.  Thus, when comparing the length of the delay and the reason for it with past cases, the Court concluded that those two factors did not weight heavily against the government, and the defendants were therefore required to prove actual prejudice (which they admittedly could not).

Williams: Remanding for Evidentiary Hearing on Trial Counsel's Conflict of Interest

In United States v. Williams, No. 15-12130 (Sept. 4, 2018) (Jordan, Tjoflat, Huck), the Court remanded the case to the district court to make factual determinations about whether trial counsel's conflict of interest had an adverse effect on the defendant.

The Court determined that trial counsel was laboring under a conflict of interest because, in addition to representing the defendant, he also represented a witness who testified at trial for the government.  He represented that witness in the pending appeal of his criminal case, and trial counsel elected not to cross examine that witness at trial.  The Court also opined that the defendant made out a strong case that this conflict of interest had an adverse effect on him because cross examination was a viable option, and he may not have done so due to his loyalty to the witness.  The Court, however, remanded for an evidentiary hearing to flesh our more details about the conflict of interest and its impact on trial counsel.

Dixon: Affirming Drug Trafficking Convictions and Sentences Over Numerous Challenges

In United States v. Dixon, et al., No. 15-14354 (Aug. 24, 2018) (William Pryor, Jill Pryor, Restani), the Court affirmed the defendants drug and firearm convictions and sentences over numerous challenges.

First, the Court concluded that the evidence was sufficient to support the defendants' convictions for conspiracy to distribute 280 grams of cocaine base.  In so concluding, the Court rejected the argument that there were several different conspiracies that only involved some of the defendants, and that a conspiracy requires a command and control structure with one or more "bosses" coordinating the actions of each player.

Second, the Court concluded that the district court did not err by denying a defendant's suppression motion.  It concluded that he lacked standing to challenge the search of his girlfriend's car in which he lacked a possessory interest, and the officers were entitled to search it in any event under the automobile exception due to the odor of marijuana.  The Court also concluded that the defendant's interview at the jail while under arrest for state charges did not violate his right to counsel, because the defendant initiated the conversation.

Third, the Court concluded that sufficient evidence supported a defendant's 924(c) conviction because, despite the small amount of marijuana, there was evidence that he was on his way to sell drugs and he had a firearm in his possession.

Fourth, the Court rejected the defendant's argument that the district court violated his procedural due process rights by not sua sponte conducting a competency hearing due to traumatic brain injury and mental defects, and that such defects rendered invalid his sentence appeal waiver.

Fifth, the Court found sufficient evidence supported a defendant's conviction for a violent crime in aid of racketeering, finding that he possessed the requisite motive of maintaining or increasing his position in the enterprise.

Sixth, the Court found sufficient evidence supported the defendant's convictions for possession with intent to distribute and 924(c).  The Court found no error by giving a Pinkerton instruction based on his role in the conspiracy.

Seventh, the Court found no error by admitting evidence of uncharged conduct.  The Court found no need to address the Rule 404(b) issue because the conduct was intrinsic to the charged offenses, since they were linked in time and circumstance with the conspiracy, and its admission did not violate Rule 403.

Eighth, the Court found that the district court correctly denied a motion for a mistrial based on prosecutorial misconduct at closing because, although the prosecutor misspoke by referencing dismissed charges, it did not prejudicially affect the defendant's substantial rights.  The reference was not extensive, there was no indication that the prosecutor did so deliberately, the evidence was extensive, the prosecutor quickly admitted his error, and the court gave a curative instruction.

Ninth, the Court found that the district court did not err by refusing to instruct the jury on entrapment.  Clarifying that the proper standard of review is de novo, not abuse of discretion, the Court found that, while the undercover officer attempted to persuade the defendant to sell a firearm, he was prosecuted only for possessing a firearm.  Thus, not entrapment instruction was warranted.

Tenth, the Court found that a defendant's sentence was reasonable.  First, the Court found no clear error by applying a four-level role enhancement.  Second, there was no error by finding him responsible for the sale of at least 2.8 kg of cocaine base under the relevant conduct guideline.  Third, the Court found no reversible error in counting a juvenile offense as criminal history because it was within five years of the commence of the offense, and there was no plain error by counting convictions for which adjudication was withheld and it did not affect the guideline range.  Lastly, the Court found the 420-month sentence substantively reasonable because it was in the guideline range and he was not similarly situated to other conspirators who cooperated with the government and received lower sentences.

McIntosh: Particularly Severe Personality Disorder was "Mental Defect" for Civil Commitment Statute

In United States v. McIntosh, No. 16-16442 (Aug. 20, 2018) (William Pryor, Jill Pryor, Anderson) (per curiam), the Court upheld the district court's decision to deny the defendant unconditional release from civil confinement.

The defendant was found not guilty by reason of insanity, and the district court ordered him civilly committed under 18 USC 4243(f).  On appeal, the defendant argued that the district court erred by finding that his risk of danger to others was due to a "mental disease of defect." The Court concluded that there was no clear error given evidence that he suffered from a particularly severe personality disorder.  The Court rejected the argument that, under the statute, mental diseases were limited to those diagnoses that clinicians would classify as such.

Colon: Indiana Causation-of-Injury Battery Statute Satisfied ACCA's Elements Clause

In Colon v. United States, No. 17-15357 (Aug. 16. 2018) (Ed Carnes, William Pryor, Anderson) (per curiam), the Court held, without oral argument, that Indiana battery statutes satisfied the elements clause of the ACCA.

The Indiana battery statute required the causation of bodily injury, which was defined to include any physical impairment, including pain.  The defendant argued that the causation of physical pain did not satisfy the elements clause.  Relying on its en banc decision in Vail-Bailon, the Court disagreed, reasoning that because the statute required the causation of pain, it was necessary "capable" of causing such pain.

Castillo: Guilty Plea Waived Ability to Challenge Pre-Arraignment Delay on Appeal

In United States v. Castillo, No. 17-10830 (Aug. 14, 2018) (William Pryor, Martin, Wood), the Court affirmed the defendant's title 46 conviction and sentence.

First, the Court rejected the defendant's argument that the MDLEA's failure to permit safety-valve relief violated equal protection and due process.  Applying a rational basis test, the Court concluded that there were legitimate reasons for Congress to craft stricter sentences for MDLEA offenses than domestic drug offenses given pressing concerns about foreign relations, global treaty obligations, and deterrence.

Second, the Court rejected as foreclosed by precedent the argument that the MDELA violates due process by subjecting foreign nationals to U.S. prosecution absent a nexus to the U.S.

Third, the Court concluded that the defendant could not challenge the constitutionality of his detention on appeal.  Although he argued that a 19-delay before presentment to a magistrate judge was unreasonable and violated due process, the Court found that his guilty plea precluded him from raising that argument on appeal, citing the Supreme Court's recent decision in Class.  The defendant could not circumvent that bar by characterizing his complaint as a constitutional challenge to the MDLEA.  Thus, the Court could not reach the merits of his detention.

Judge Martin concurred in the judgment.  She agreed with the first two holdings, but disagreed with the holding that, by pleading guilty, the defendant waived his argument that a 19-day detention between arrest and first appearance violated due process.  She did not read Class or circuit precedent as supporting that result.  Nonetheless, she concluded that the delay in this case was reasonable.

Joyner: Applying Good-Faith Exception to Carpenter Error

In United States v. Joyner, et al., No. 17-10289, 17-10826 (Aug. 14, 2018) (William Pryor, Julie Carnes, Antoon) (per curiam), the Court affirmed the defendants' convictions for Hobbs Act robbery and 924(c), but vacated one defendant's sentence due to a plain guideline miscalculation.

First, the Court concluded that the district court did not err by providing the jury with a copy of the indictment listing the dates of the charged robberies in response to a jury question about the dates and times of the offenses.  The defendants argued that supplying the jury with the indictment improperly suggested that it was evidence of guilt without re-instructing the jury that it was not.  The Court concluded that, while it would have been prudent for the court to remind the jury of that, it concluded that the court did not abuse its discretion in failing to do so under the circumstances of this case. 

Second, the Court concluded that the district court's denial of a motion to suppress cell site data did not warrant reversal.  Although the Supreme Court's decision in Carpenter rendered their admission erroneous, abrogating in part prior circuit precedent in Davis, it did not abrogate the alternative good-faith holding in Davis.  The defendants made no argument for why the good-faith exception did not apply where the government complied with circuit precedent then in existence.

Third, the Court found no abuse of discretion in denying a defendant's motions for new counsel due to a breakdown in communication.  After several hearings, the court found that there was no such breakdown, and a defendant's general loss of confidence or trust in counsel, alone, is not sufficient to establish good cause.

Fourth, the Court concluded that the district court did not err by rejecting the defendant's Bruton argument.  The admission of a co-defendant's statement was not erroneous because it was not directly incriminating on its face, but rather became so only after linked with other evidence later introduced at trial.

Lastly, the Court accepted the government's concession the district court erroneously applied a 5-level enhancement rather than a 4-level enhancement under the unit-based grouping guideline in USSG 3D1.4.  Although nobody objected to that error, the Court found that it satisfied the requirements for plain error and therefore vacated the sentence.

Elbeblaway: Upholding Health Care Fraud Convictions but Vacated Forfeiture Order Under Honeycutt

In United States v. Elbeblawy, No. 16-16048 (Aug. 7, 2018) (William Pryor, Martin, Wood), the Court affirmed the defendant's health care fraud convictions but vacated the forfeiture order.

First, the Court concluded that the court did not err by admitting at trial a signed factual basis for a plea agreement that the defendant entered before changing his mind and proceeding to trial.  Although rules of evidence and procedure normally bar that admission, the defendant agreed to waive those rules in the plea agreement, and that waiver is enforceable if voluntary.  The Court rejected the defendant's argument that the waiver was unenforceable, finding that the waiver was unambiguous, and the court did not clearly err by finding a voluntary waiver due to his attorney's failure to explain it.

Second, the Court concluded that the government did not violate Brady by failing to disclose an allegedly exculpatory report about a police interview.  The Court found no reasonable probability of a different outcome from that report, but rather found that it would have had only some minimal impeachment value of a witness, and the evidence was overwhelming even without that witness' testimony.

Third, the Court concluded that the court did not constructively amend the indictment by instructing the jury on the conspiracy count.  Despite the court's slightly different wording from the pattern instruction, the court correctly stated the law and its instruction tracked the pattern almost verbatim.  It observed that cheating the government out of money or property, as charged, was indeed a kind of deceptive interference with the lawful functions of the government. 

Fourth, the Court concluded that the court did not clearly err when calculating the guideline range.  There was no ex post facto violation by sentencing him under the more recent version of the Guidelines because his offense continued after the amendment.  There was no clear error by applying the sophisticated means enhancement.  And there was no clear error in calculating the loss because it was supported by the evidence, including the signed factual basis of his plea agreement.

Lastly, as to the forfeiture  order, binding precedent foreclosed the arguments that forfeiture statutes did not authorize personal money judgments, and that the Sixth Amendment required proof beyond a reasonable doubt.  However, the Court found that the court erred under Honeycutt by imposing a forfeiture order that held the defendant jointly and severally liable for the proceeds of the conspiracy.  Although Honeycutt involved a different statute, the same reasoning applied to the statute for health care fraud.

Maitre: Upholding Agg ID Convictions and Loss Calculation

In United States v. Maitre, No. 17-12166 (Aug. 7, 2018) (Martin, William Pryor, Hall), the Court affirmed the defendant's convictions and sentence for access device fraud and identity theft.

First, the Court upheld the district court's deliberate ignorance instruction.  It concluded that there were facts supporting an inference that the defendant purposefully contrived to avoid learning all of the facts beyond her own denial of knowledge.

Second, the Court found that the evidence was sufficient to uphold her convictions.  As to the conspiracy count, the Court found that she had the requisite knowledge because the home she shared had stolen goods in plain view around the house, she engaged in "heat runs" to avoid being followed by the police, she accompanied the other defendants to throw away evidence.  As for the aggravated identity theft counts, the Court concluded that the defendant constructively possessed the means of identification and that she knew they belonged to real people who had been victimized.

As for the sentence, the Court found no clear error with regard to the loss calculation because credit cards, debit cards, social security numbers, and driver's licenses all qualified as "access devices."  The Court also found no clear error in refusing to deny her a minor-role reduction.

In re Williams: Judges Wilson and Martin Criticize the Rule that Published SOS Holdings are Binding Precedent

In In re Williams, No. 18-12538 (Aug. 1, 2018) (Wilson, Martin, Jill Pryor) (per curiam), the Court denied an application by a state prisoner for leave to file a successive 2254 petition.

Judge Wilson, joined by Judges Martin and Jill Pryor, specially concurred in order to criticize the Court's recent holding in St. Hubert that all published SOS orders are binding precedent.  In a thorough opinion, he explained why that holding was problematic: SOS applications are prepared on a standardized form and often decided without counsel, oral argument, adversarial testing, or the full record; the 11th circuit publishes more SOS orders than other circuits, no other circuits considers itself bound by the 30-day deadline to decide an SOS application, and several other circuits receive briefing and oral argument in SOS application; SOS orders are unreviewable by statute, and so any mistake can be corrected only if a judge sua sponte requests rehearing en banc; and there are no formal rules on when orders can be published or reheard en banc.

Judge Martin, joined by Judges Wilson and Jill Pryor, also specially concurred in order to explain how creating binding precedent through SOS orders "goes far beyond the prima facie examination called for by the statute."  She emphasized that no other circuit examines the underlying merits at the SOS stage.  But the Eleventh Circuit, by contrast, has "entered hundreds of orders denying motions based on this merits inquiry, thus touching many lives."  And, in doing so, it has published at least eight opinions holding, for the first time, that a particular offense was a violent felony or crime of violence.