Jackson: Court Must Apply Version of CSA Schedules in Place When Defendant Committed Instant Federal Offense; and Fla. Stat. 893.13 Cocaine Conviction Overbroad Because of Inclusion of Ioflupane

In United States v. Jackson, No. 21-13963 (June 10, 2022) (Rosenbaum, Jill Pryor, Ed Carnes), the Court vacated Mr. Jackson's ACCA-enhanced sentence and remanded for resentencing without the ACCA sentence enhancement.  

In this appeal, the Court considered which version of the Controlled Substance Act Schedules incorporated into ACCA’s definition of “serious drug offense” applies when a defendant is convicted of being a felon in possession of a firearm: the version in effect at the time of the defendant’s federal firearm-possession violation (for which he is being sentenced), or the ones in effect when he was convicted of his predicate state crimes that we are evaluating to see whether they satisfy ACCA’s definition of “serious drug offense.”

The Court held that due-process fair-notice considerations require the application of the version of the Controlled Substance Act Schedules in place when the defendant committed the federal firearm-possession offense for which he is being sentenced.  

With that in mind, the Court found that Mr. Jackson's 1998 and 2004 cocaine-related convictions under Fla. Stat. § 893.13 did not qualify as "serious drug offense[s]" because they encompassed the sale of, or possession with intent to distribute, ioflupane, which was not a "controlled substance" for purposes of the "serious drug offense" definition in the ACCA at the time of Mr. Jackson's federal firearms offense.  Ioflupane was removed from the federal drug Schedules in September 2015 because of its value in potentially diagnosing Parkinson's Disease.  Florida, however, did not remove ioflupane from its drug schedules until July 2017.  

The Court further noted that prior precedents in Smith (2014), Smith (2020), Shular, and McNeill did not preclude relief here.  It noted that the question of which version of the Controlled Substance Act's drug Schedules governed under the ACCA's definition of "serious drug offense" was "not even a twinkle in [the Court's] eyes or in those of the Supreme Court in the Smith cases and in Shular."  That is, where a court has never addressed an issue, and had at most assumed the issue, the court is free to address the issue on the merits in a later case presenting it.  As for McNeill, it only answers the backward-looking question of what the defendant's previous state conviction was.  It does not the question presented here.  

  

Stines: Lower Base Offense Level for Exporting Weapons Does Not Apply Where There Are More Than Two Weapons Parts or Components

In United States v. Stines, No. 20-11035 (May 31, 2022) (Wilson, Luck, Lagoa), the Court affirmed the defendant’s sentence for unlawfully exporting weapons.

Ordinarily, under U.S.S.G. 2M5.2(a), the unlawful exportation of weapons carries a base offense level of 26, but there is an exception carrying a base offense level of 14 where the offense involved only non-fully automatic small arms, and the number of weapons did not exceed two.  In this case, the defendant exported 23 weapons parts that could be converted into only two fully assembled weapons.  The Court agreed that the exception could apply to weapons parts, not just fully assembled weapons.  However, the Court held that the exception did not apply in this case because the number of parts could service more than two weapons.  Although this reading would mean that exporting three triggers alone would produce a higher base offense level than exporting two fully assembled firearms, that did not create an absurd result.  The Court also held that it lacked jurisdiction to consider the district court’s refusal to grant a downward departure under the Guidelines.

Judge Luck concurred, opining that the exception did not apply to gun parts because those were not “small arms.”  Judge Lagoa authored a concurrence disagreeing on that point.

Gardner: "Maximum Term of Imprisonment" for ACCA "Serious Drug Offense" is Defined by Statutory Maximum, not High end of Presumptive Guideline Range

In United States v. Gardner, No. 20-13645 (May 27, 2022) (Newsom, Tjoflat, Hull), the Court affirmed the defendant’s ACCA sentence.

The district court applied the ACCA based prior Alabama drug convictions.  The defendant argued that his convictions did not qualify as “serious drug offenses” because they did not have a “maximum term of imprisonment” of ten years or more.  The Court held that the “maximum term of imprisonment” was determined by the statutory maximum under state law.  The Court rejected the defendant’s argument that it was instead determined by the high-end of the state’s presumptive guideline range.

Jimenez-Shilon: 9225(g)(5)(A), prohibiting illegal aliens from possessing guns, does not violate Second Amendment

In United States v. Jimenez-Shilon, No. 20-13139 (May 23, 2022) (Newsom, Branch, Brasher), the Court held that 18 U.S.C. 922(g)(5)(A)—which prohibits illegal aliens from possessing firearms—does not violate the Second Amendment.

The Court held that illegal aliens do not have Second Amendment rights.  The Court assumed, for the sake of argument, that the defendant here was among the “people” referenced in the Constitution.  Nonetheless, after conducting an extensive historical analysis, the Court concluded that illegal aliens were not afforded the right to bear arms in England or colonial America.  In so concluding, the Court joined seven circuits to address the issue, which all reached the same conclusion.  Accordingly, the Court held that 922(g)(5)(A) does not violate the Second Amendment.

Judge Newsom authored a separate 10-page concurrence about his views more generally on how to conduct a Second Amendment analysis in future cases.

Coglianese: Upholding Supervised Release Restriction on Computers and Electronic Data Storage Medium in Child Sex Case

In United States v. Coglianese, No. 20-12074 (May 17, 2022) (William Pryor, Jordan, Brown (N.D. Ga.)), the Court affirmed the defendant’s low-end 168-month for child sex crimes.

After upholding the procedural and substantive reasonableness of the sentence, the court upheld a special condition of supervision restricting the defendant from accessing computers and the internet, and from possessing any electronic data storage medium, without prior approval by probation.  The Court had uniformly upheld computer restrictions in sex offender cases where, as here, the defendant could seek permission from probation, including in decisions issued after the advent of smartphones.  The defendant argued that the restriction on an “electronic data storage medium” was overbroad and included everyday items like a modern television and alarm system, but the Court concluded that the ordinary meaning of the phrase referred to a flash drive and other devices that can store and transmit information for processing by a computer.  It was therefore tailored to the defendant’s offense and neither overbroad nor an abuse of discretion.

Rodriguez: Affirming Sentence for Trafficking 200kg of Meth

In United States v. Rodriguez, No. 20-14681 (May 12, 2022) (Jill Pryor, Grant, Marcus), the Court affirmed the defendant’s 135-month sentence for his role in a conspiracy trafficking methamphetamine.

First, the Court upheld the district court’s decision to attribute 200 kilograms of meth to Rodriguez after considering the scope of the enterprise, his particular role, and the quantity of drugs that would be reasonably foreseeable in light of his role.  This case involved a large importation/distribution enterprise driving drugs across the Mexico border for distribution, and then wiring money back to the cartels in Mexico.  Rodriguez acted jointly with his co-conspirators and participated in the conspiracy in six different ways, five of which included directly transporting drugs.  And, even though he played a “minor role” in the conspiracy, that did not preclude attributing the full quantity of drugs to him where that quantity was reasonably foreseeable.

Second, the Court upheld an enhancement for possession of a firearm because his co-conspirator had stored a firearm at the stash house, and that was reasonably foreseeable, as Rodriguez effectively admitted at sentencing.

Third, the Court lacked jurisdiction to consider the argument that the district court erroneously failed to grant a downward departure under the Guidelines.  Appellate review is available only where the district court incorrectly believed that it lacked authority to grant the departure, and nothing in the record suggested that the district court harbored such a misunderstanding.

Finally, the Court concluded that the low-end sentence was not substantively unreasonable.  Nor did the district court abuse its discretion in declining to impose a downward variance.

Moon: Sixth Amendment Structural Right to a Public Trial is Waivable

In United States v. Moon, No. 20-13822 (May 10, 2022) (Jill Pryor, Branch, Hull), the Court affirmed the defendant’s child pornography convictions.

First, the Court upheld the denial of a motion to suppress videotapes found during the execution of an unrelated search warrant on the defendant’s medical office.  The Court concluded that the search was within the scope of the warrant because it referred to “videotapes” and “tapes.”  Thus, the officer was entitled to briefly examine the tapes, as that was the only way to determine their relevance to the crime.  The Court rejected the defendant’s argument that the videotapes were too obsolete to contain criminal evidence, as the office contained a VCR as well as a hidden surveillance camera.

Second, the Court upheld the district court’s closures of the courtroom to display sensitive evidence.  The Court found that the parties entered into a pre-trial agreement to do so.  The Court joined other circuits in holding that the structural right to a public trial is waivable.  And the Court concluded that the defendant waived that right by entering the pre-trial agreement, affirmatively consenting to the closure at various points early in the trial, and subsequently failing to object to any later closures that purportedly exceeded the scope of the agreement.

Finally, the Court briefly found no abuse of discretion in the district court’s: denial of a motion for a Franks hearing; denial of a motion for recusal; and failure to give several requested instruction on the definition of “lascivious exhibition.”

Seabrooks: Reversing Denial of 2255 Motion Based on Rehaif

In Seabrooks v. United States, No. 20-13459 (May 6, 2022) (Wilson, Rosenbaum, Conway (MD Fla.)) (per curiam), the Court reversed the denial of a 2255 motion based on Rehaif, vacated the felon-in-possession conviction, and remanded for further proceedings.

The Court issued three holdings.  First, it agreed with the parties that Rehaif announced a  new “substantive” rule, and so it applied retroactively in initial 2255 motions.  Second, it held that Seabrooks’ Rehaif claim was not “procedurally barred” by his failure to raise that claim on direct appeal, since Rehaif was an intervening change in law.  And the government waived any argument about “procedural default” by failing to raise that defense in the district court.  Third, the Court held that the district court’s aiding and abetting instruction, which was erroneous in light of Rosemond and Rehaif, was not harmless because there was more than a reasonable probability that the jury relied on that theory to convict.

Clark: Affirming Drug and Firearm Convictions

In United States v. Clark, No. 20-10672 (Apr. 28, 2022) (Jordan, Jill Pryor, Tjoflat), the Court affirmed Mr. Clark's convictions and sentence.  

Mr. Clark was convicted of possessing a firearm as a convicted felon, possessing methamphetamine with intent to distribute, and possessing a firearm in furtherance of a drug trafficking crime.  After a jury trial, he was sentenced to 360 months' imprisonment.  

Mr. Clark raised five issues on appeal.  First, he argued that the district court abused its discretion in denying his motion for a new trial based on the government's post-trial disclosure of Brady material about a Bureau of Alcohol, Tobacco, Firearms and Explosives special agent who had been internally disciplined for destroying evidence in a previous case involving an individual charged with distributing narcotics and being a felon in possession of a firearm (as a result of this agent's misconduct, one of the United States Attorney's Offices refused to accept future cases from him).  At Mr. Clark's trial, this special agent testified as an expert witness about the interstate nexus and gun identification.  The Court found no abuse of discretion because Mr. Clark received a fair trial with a "verdict worthy of confidence," even without the disclosure of Brady material.     

Second, Mr. Clark argued that the district court erred in denying his motion  to suppress the evidence seized as a result of a traffic stop and subsequent arrest.  Mr. Clark maintained that officers did not have reasonable suspicion or probable cause for a traffic stop in the first place, and no probable cause to search his car.  The officer who pulled over Mr. Clark consistently testified that he did so because Mr. Clark's car was weaving in and out of lanes, but he could not remember the details.  The Court noted that officers need not have perfect memory as to why they stopped an individual in order for probable cause to be found.  Additionally, the Court also found that officers had probable cause to arrest Mr. Clark, and, therefore, search him and his car incident to arrest.  

Third, Mr. Clark argued that the district court failed to specifically instruct the jury to apply the beyond-a-reasonable-doubt standard to the special verdict question of weight of methamphetamines discovered.  If the jury found that the weight was above 5 grams, that finding would raise the mandatory minimum to 5 years and the statutory maximum to 40 years.  Reviewing for plain error, the Court found that the district court erred, but found itself "powerless" to correct the error because Mr. Clark invited the error by affirmatively accepting the special verdict question.  The Court also noted that such an error--an Alleyne error--is not structural error, and noted that even if it were structural, the law is mixed on how a structural error interacts with the invited-error doctrine.  

Fourth, Mr. Clark argued that the district court abused its discretion when it admitted evidence of all eight of Mr. Clark's prior felony convictions, including a probation order that surveyed his lengthy arrest record, with regard to the felon-in-possession count.  He also argued that the records should have been redacted and that a limiting instruction should have been given.  The Court noted that since, post-Rehaif, the government must now prove that an individual knew he was a felon when he possessed the firearm, and Mr. Clark did not stipulate to his status as a convicted felon, the district court did not abuse its discretion in allowing the government to admit all eight convictions as to that element.  The Court refused to establish a brightline rule that would limit the number of convictions the government could introduce, noting that the number likely depended on the circumstances of each case.  The Court reviewed Mr. Clark's other contention--that the records should have been redacted and a limiting instruction given--for plain error, and found none.  The Court noted that though the arrest records had zero bearing on the knowledge element, the district court was under no affirmative obligation to sua sponte exclude them. 

Finally, Mr. Clark argued that the cumulative effect of the errors in his trial warranted reversal.  The Court disagreed.      

 

Thomas: Affirming Sentence

In United States v. Thomas, No. 19-11670 (Apr. 25, 2022) (Branch, Grant, Tjoflat), the Court affirmed Mr. Thomas's sentence.  

Mr. Thomas appealed his 120-month sentence for conspiracy to possess with intent to distribute 50 grams or more of actual methamphetamine and 1 kilogram or more of heroin.  He argued that the district court erred in (1) applying a two-level enhancement under U.S.S.G. § 2D1.1(b)(12), and (2) failing to apply the safety valve of U.S.S.G. § 5C1.2.   

With regard to § 2D1.1(b)(12), the PSI asserted that Mr. Thomas had maintained a stash house for the purpose of manufacturing or distributing a controlled substance.  In support, the PSI noted that Mr. Thomas had possessed a key to the drug trailer located in the backyard of the stash house.  Mr. Thomas argued that he did not own the stash house, did not reside there (though he did concede that he did live there for a small part of the conspiracy), and possessed a key only to the trailer, not the house.

The Court found application of a two-level enhancement under § 2D1.1(b)(12) appropriate because of Mr. Thomas's concession that he lived at the stash house for a good portion of the conspiracy.  As a result, the district court was entitled to assume he had unfettered access to and control over the premises.  That he moved out of the stash house at some point prior to police’s seizure of the drugs and firearms does not affect the analysis. The Court reasoned that Mr. Thomas did not need to maintain the premises for the purposes of distributing drugs for the entire conspiracy to be eligible for a sentencing enhancement under § 2D1.1(b)(12); he merely needed to do so for a portion of the conspiracy.       

As for safety valve, the Court first found that the district court erred when it concluded that the two-level firearm enhancement under § 2D1.1(b)(1) necessarily barred Mr. Thomas from safety valve relief.  The Court reaffirmed that a defendant who receives a firearm enhancement under § 2D1.1(b)(1) can still secure safety valve relief if he shows that it is more likely than not that the possession of the firearm was not in connection with the offense.  Nevertheless, Mr. Thomas was ineligible for safety valve relief because he failed to meet his burden of showing that he met each of the five safety-valve criteria.  More specifically, he could not satisfy § 5C1.2(a)(5) because he refused to provide the government with any of the information he had concerning the drug operation.     

Mosley: Vacating Sentence for Failing to Provide an Opportunity to Object

In United States v. Mosley, No. 20-11146 (Apr. 21, 2022) (William Pryor, Jordan, Brown (N.D. Ga.)) (per curiam), the Court vacated Mr. Mosley's sentence and remanded for further proceedings.  

Mr. Mosley pleaded guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2).  At sentencing, his advisory Guidelines' range was calculated to be 37 to 46 months' imprisonment.  Both his attorney and the government requested a sentence within the guideline range.  The district court, however, varied upwards to 87 months' imprisonment on account of Mr. Mosley's criminal activity and background.  Subsequently, in its Statement of Reasons, the district court stated it imposed the sentence, in part, because the weapon involved was stolen from the police department.  Mr. Mosley appealed, arguing that the district court erred in sentencing him based on that conclusion without first allowing him an opportunity to object.  

The Court agreed with Mr. Mosley.  It reaffirmed that under Jones, a district court must elicit fully articulated objections, following imposition of sentence, to the court's ultimate findings of fact and conclusions of law.  The district court here did not follow the Jones procedure.  No one mentioned that the firearm had been stolen from a police department at the sentencing hearing.  That fact was not set out in the PSI.  As such, because the district court first announced this conclusion after the sentencing hearing when it issued the written document, the district court did not provide Mosley an opportunity to object to its finding as to the victim of the theft.   

The Court noted, however, that its holding was narrow, and not an invitation for new Jones claims based on the Statement of Reasons.  It reaffirmed that a district court’s post-sentencing Statement of Reasons form is not typically a document a defendant may use to pursue a Jones violation.      

Stowers: Affirming Denial of Motion to Suppress Wiretap Evidence

In United States v. Stowers, No. 18-12569 (Apr. 20, 2022) (Jordan, Brasher, Anderson), the Court affirmed the district court's denial of the defendants' motions to suppress.

In this consolidated appeal, the Court answered several questions of first impression regarding Title III of the Omnibus Crime Control and Safe Streets Act, which regulates the interception of wire, oral, and electronic communications.  While investigating a suspected drug trafficking conspiracy, a Georgia Bureau of Investigation agent secured a wiretap authorization order from a state judge. The wiretap ultimately implicated the nine named defendants in the conspiracy.  When federal authorities prosecuted them based on this state-gathered evidence, the defendants asked the district court to suppress the evidence on three grounds: (1) the state judge did not correctly seal the wiretap recordings as required under Title III; (2) the government impermissibly delayed sealing the wiretap recordings without providing a satisfactory explanation for the delay; and (3) the state court's wiretap authorization order exceeded its jurisdiction.  

The order authorizing the wiretap contained the following language: “Let return hereof and report as required by law be made before me within forty (40) days of date hereof or ten (10) days from the date of the last interception, whichever is earlier.” The authorization also stated that all applications, affidavits, orders, reports, court reporter’s notes, tapes, and disks, “and all other matters filed or received herein shall remain sealed until further Order of this Court … [and] remain in the custody of the Clerk.”  Finally, each wiretap authorized the State to continue to monitor and electronically intercept transmissions to and from the target telephone during any out of state travels.  

As to the first ground, the Court held that nothing in the text of Title III requires that the judge issue a separate, written sealing order after receiving the recordings.  What occurred in this case--taking the original recordings to the judge, placing a seal on a tamper-proof evidence bag in front of the judge, initialing the bag along with the judge, and leaving the evidence bag in the possession of the court clerk--satisfies the statute's requirements for sealing.    

As to the second ground, the Court held that the government provided a "satisfactory explanation" for any delay in sealing.  As an initial matter, the Court noted, in line with its sister circuits, that the recordings were sealed immediately--in line with the statute's express language--because the statute puts judicial officers--not law enforcement--in charge of sealing wiretap recordings, and here, the agents met the authorizing judge's ten-day deadline.  But, even assuming the recordings were returned late, as both parties argued, the government provided a "satisfactory explanation" to excuse the delay.  In so holding, the Court found that the government had met two threshold requirements: that the recordings had not been tampered with, and that the government had acted in good faith.  The Court then found that the other factors also weighed in favor of finding the government's explanation "satisfactory."  More specifically, with regard to the third factor--whether the government's reasons for delaying were objectively reasonable--the Court held, in line with its sister circuits, that it was objectively reasonable for the officers to rely on the ten-day period in the authorizing court's order.  Law enforcement agents do not act unreasonably when they decline to doublecheck a judge’s wiretap order with their own independent legal research. Title III puts the court in charge of the process, not law enforcement. 

As to the third ground, the Court held that the state court did not exceed its jurisdiction in authorizing the interception of calls made outside of the state because under Georgia law, Georgia courts have the authority to issue wiretap warrants for the interception of calls if either the tapped phones or the listening post are located within Georgia.  Here, the listening post was in Georgia.  The Court noted that the safeguard on the scope of state court’s wiretap authority is the requirement that law enforcement establish probable cause for the intrusion, not a geographical limit on the phone calls that can be monitored.   

Judge Jordan wrote separately, concurring in part, and concurring in the judgment.  He agreed that the government explanation for the delay in sealing was "satisfactory," but for different reasons.  Because the interception orders at issue here were sought by a state law enforcement officer and issued by a state judge pursuant to Georgia law, Judge Jordan would have determined whether the government's explanation for the delay in sealing was satisfactory by reference to Georgia law as well as federal law.    

      

Smith: Reversing Denial of First Step Act Motion and Remanding

In United States v. Smith, No. 19-13056 (Apr. 19, 2022) (William Pryor, Jordan, Brown (N.D. Ga.)), the Court reversed the district court's denial of Mr. Smith's First Step Act motion and remanded for further proceedings.  

Mr. Smith was convicted of possession of 5 grams or more of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(b)(1)(B), and the brandishing of a firearm in the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).  He was sentenced to a term of imprisonment of 210 months on the crack cocaine conviction, and a consecutive term of imprisonment of 84 months on the firearm conviction.  Based on Amendments 706 and 782 to the Sentencing Guidelines, his sentence on the crack cocaine conviction was reduced to 168 months' imprisonment, and then to 135 months' imprisonment.  

After passage of the First Step Act, Mr. Smith wrote a letter to the district court asking whether he was eligible for a sentence reduction, and requesting the appointment of counsel to file a motion.  The district court appointed the Federal Public Defender's Office to represent Mr. Smith.  The probation office then prepared a memorandum advising the court that Mr. Smith was ineligible for a sentence reduction.  The district court then, without the benefit of briefing, construed Mr. Smith's pro se letter as a motion for relief under the First Step Act and denied it, concluding that Mr. Smith was not eligible for a reduction.  Mr. Smith moved for reconsideration, to which the government was ordered to respond and "includ[e] all substantive arguments."  The parties then filed a joint motion for reconsideration requesting a briefing schedule to allow litigation of all arguments for relief, which the court denied.  The court also denied Mr. Smith's request for leave to file a reply to the government's response to address the government's substantive arguments.  The court then denied Mr. Smith's motion for reconsideration, finding Mr. Smith ineligible for relief under the First Step Act, and alternatively, even if he were eligible, that any further reduction was unwarranted.

This Court reversed and remanded to afford Mr. Smith an opportunity to be heard as to why he merited a sentence reduction.  The Court first determined that, under Jones, Mr. Smith is eligible for relief.  The Court then addressed the district court's alternative ruling, and found that it could not stand because Mr. Smith was not given an opportunity to be heard on the issue.  The Court reasoned that although the district court provided reasons as to why Mr. Smith did not merit a sentence reduction, it rendered its alternative ruling without hearing from him and without considering the factual and legal bases that might support a favorable exercise of discretion. The wide berth given to district courts by the First Step Act requires deferential review with respect to the ultimate exercise of discretion, but it does not speak to the process which must be provided to the parties.        

Hakim: Waiver of Right to Counsel was Not Knowing

In United States v. Hakim, No. 19-11970 (Apr. 14, 2022) (William Pryor, Grant, Anderson), the Court vacated Mr. Hakim's conviction and remanded for further proceedings.  

The Court addressed whether a defendant's waiver of his right to counsel is knowing when a court gives materially incorrect or misleading information to the defendant about his potential maximum sentence.  Here, Mr. Hakim was found guilty after a jury trial on three misdemeanor counts of willful failure to file a federal income tax return.  Although he was represented by counsel at trial, he was without counsel during the pretrial process.  At his arraignment, Mr. Hakim expressed his desire to waive his right to counsel and to represent himself.  The magistrate judge found that Mr. Hakim's waiver was knowing after misinforming him that the maximum sentence he could receive if convicted was 12 months imprisonment.  After trial, Mr. Hakim was sentenced to 21 months of imprisonment.  On appeal, Mr. Hakim argued that his waiver of counsel was not knowing. 

As an initial matter, the Court first clarified that the applicable standard of review on appeal was de novo--and not plain error--where a pro se defendant failed to contemporaneously object to the validity of his own waiver.  It then agreed with Mr. Hakim, holding that because Mr. Hakim had received incorrect information about the possible punishment he faced, there was no knowing and intelligent waiver of his right to counsel.  Here, the magistrate judge not only failed to inform Mr. Hakim of the maximum sentence, but he misled Mr. Hakim by incorrectly representing that the maximum term of imprisonment would be one year, when it was instead three year.  The government bore the burden of showing that there was other evidence in the record to support that Mr. Hakim knew the correct range from another source in order to establish that the waiver was knowing, but it could not meet its burden.  

Additionally, Mr. Hakim did not need to show prejudice to obtain a reversal because the constitutional error was structural.  That is, he was deprived of his constitutional right to counsel at a critical stage.

Judge Grant dissented.  She would have reviewed for plain error and upheld Mr. Hakim's conviction.  She distinguished Mr. Hakim's case from those in other circuits that have applied de novo review, because he proceeded to trial and sentencing with counsel.    

  

Woodson: Interview Not Custodial, No Miranda Warning Required

In United States v. Woodson, No. 20-10443 (Apr. 13, 2022) (Branch, Grant, Brasher), the Court affirmed Mr. Woodson's convictions and sentence.  

Mr. Woodson was charged with offenses relating to child pornography and extortionate interstate communications.  A jury found him guilty on all counts, and he was sentenced to 50 years' imprisonment followed by a life term of supervised release.  

On appeal, he first challenged the district court's denial of his motion to suppress statements he made to police without the benefit of Miranda warnings.  Approximately 15 officers arrived at the home Mr. Woodson shared with his family, including his brother Brandon, to execute a search warrant.  Mr. Woodson was asleep when the officers entered his bedroom, handcuffed him, and escorted him to the living room, where he joined his family.  Officers then interviewed Brandon outside of the home, inside a parked police van.  They determined that he was unlikely to be the culprit.  Mr. Woodson agreed to talk with officers next.  He was uncuffed and followed officers to the same parked police van.  He sat in the front passenger seat, with one detective in the driver's seat and another detective in the back seat.  Mr. Woodson was advised that he was not under arrest, that he was not charged with a crime, and that they were talking voluntarily.  He was not, however, read the Miranda warnings.  Mr. Woodson eventually confessed to the crimes alleged, and after less than an hour, the discussion concluded, and he was escorted back inside the home.  He was not arrested until nearly eight months later.  

Mr. Woodson argued that his statements should have been suppressed because his discussion with law enforcement had been a custodial interrogation that required Miranda warnings.  The Court disagreed.  The Court first clarified that the determination of custody under Miranda depends entirely on the objective circumstances of the interrogation, which are assessed from the perspective of the reasonable innocent person.  As such, the Court found the lower court's reliance on the subjective beliefs of Brandon regarding his interactions with law enforcement to be erroneous.  Because the custody test is objective, courts do not consider subjective beliefs, even those of others who are interrogated.  The Court then concluded that a reasonable person in Mr. Woodson's position would have felt free to terminate the interview and leave, though it recognized that "the question may be close here."  In support, the Court noted that Mr. Woodson was advised he was not under arrest, not charged with a crime, and that his conversation was voluntary; he was not handcuffed and sat in the front passenger seat of the police van.    

Additionally, even if a reasonable person in Mr. Woodson's position would not have felt free to terminate the interview and leave, the interview environment did not present the serious danger of coercion that a custodial interview entails.  First, any display of police control and authority that occurred earlier when officers executed the search warrant was irrelevant to the determination of whether the subsequent interview was custodial.  Additionally, Mr. Woodson was not whisked away to the police station, but instead remained outside his home, in clear view of his neighbors.  Finally, he was not entirely cut off from his normal life--he quickly returned to it.  That officers threatened to expose Mr. Woodson to his boss if he lied to them and the hour-long duration of the interview did not tip the scale in Mr. Woodson's favor.    

Mr. Woodson also challenged his sentence on procedural and substantive grounds, which the Court rejected.    

Judge Brasher filed a concurrence, noting that, in his view, the lower court did not err in considering the testimony of Brandon as part of the totality of circumstances of the Miranda custody determination.  This is so because he was neither the suspect nor the police; rather he was an innocent third-party who testified about his impression of the scene.             

Moss: Affirming Health Care Fraud Convictions, Sentence, and Restitution Amount

In United States v. Moss, No. 19-14548 (Apr. 12, 2022) (William Pryor, Luck, Ed Carnes), the Court affirmed Mr. Moss's convictions, sentence, and restitution amount.  

Mr. Moss was charged with one count of conspiracy to commit health care fraud, in violation of 18 U.S.C. §  1349, and six counts of health care fraud, in violation of 18 U.S.C. §  1347.  After a jury trial, he was convicted of all counts.  He was sentenced to 97 months imprisonment, ordered to forfeit $2,507,623, and to pay $2,256,861 in restitution.  He appealed his convictions and sentence, as well as the restitution and forfeiture amounts.  

Mr. Moss raised three challenges to his convictions, which the Court found to be without any merit.  

As for his sentence, Mr. Moss challenged the loss amount used to determine his sentence, the dollar amount he had to pay in restitution, and the forfeiture amount.  The Court found no clear error in the district court's determinations.  With regard to the forfeiture determination, the Court found that forfeiture ordered under 18 U.S.C. §  982(a)(7)--"forfeit property, real or personal, that constitutes or is derived, directly or indirectly, from gross proceeds traceable to the commission of the offense"--encompasses the proceeds Mr. Moss received for providing legitimate services.  In so holding, the Court applied a "but for" test, asking, but for his Medicare fraud, would Mr. Moss have been entitled to collect proceeds for his legitimate services? The Court held no.        

Sanchez: Upholding Convictions and Sentence of Life Plus Ten

In United States v. Sanchez, No. 19-14002 (Apr. 5, 2022) (Branch, Grant, Ed Carnes), the Court affirmed Mr. Sanchez's convictions and sentence. 

Mr. Sanchez was charged with two counts of enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b); two counts of enticing a minor to engage in sexually explicit conduct in order to produce child pornography, in violation of 18 U.S.C. § 2251(a); two counts of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B); and one count of having committed a felony offense involving a minor while already a registered sex offender, in violation of 18 U.S.C. § 2260A.  He was found guilty after trial of all counts and sentenced to life imprisonment plus a consecutive ten-year mandatory minimum.  

Mr. Sanchez appealed the district court's denial of his motion to suppress.  More specifically, whether the district court erred by not excluding evidence derived from the officer's brief, warrantless entry into Mr. Sanchez's home for the sole purpose of seizing a phone for which the officers had obtained a search warrant.  Officers arrived at Mr. Sanchez's home, which he shared with his parents, with a warrant to seize his phone.  They encountered Mr. Sanchez out on his driveway.  He did not have his cellphone on his body; it was inside the home, in his bedroom.  Officers testified that they obtained consent from Mr. Sanchez's mother to enter the home with her to retrieve the cellphone.  Mr. Sanchez challenged the officers' contention that they obtained his mother's consent to enter the home because the officers could not remember exactly how the mother consented--verbally, nonverbally, etc.  

The Court found that Mr. Sanchez consented to the seizure of his phone, that his mother gave officers at least nonverbal consent to follow her into the home to retrieve the phone, and that their consent was voluntarily given--there was no show of force causing either of them to acquiesce to a show of authority, nor was the search conducted in the middle of the night.  Additionally, consent can be nonverbal.  Likewise, silently accepting an officer's expressed intent to enter the house solely for the purpose of retrieving the phone is also valid consent.     

Mr. Sanchez also challenged his sentence.  First, he argued that his previous conviction under Article 120 of the Uniform Code of Military Justice for indecent conduct should not be a qualifying offense under 18 U.S.C. § 2251(e), which triggered a 25-year mandatory minimum sentence of imprisonment.  The Court rejected this argument because the plain language of § 2251(e) requires the application of a 25-year mandatory minimum sentence if a defendant has a prior conviction under Article 120.    

Mr. Sanchez next challenged four guidelines sentencing enhancements--a 4-level increase under U.S.S.G.  § 2G2.1(b)(4); a 2-level increase under  § 2G2.1(b)(2)(A); a 5-level increase under § 4B1.5(b)(1); and a 2-level increase under § 2G2.1(b)(3).  As to the first three, the Court found no error in their application.  As to the fourth--a 2-level increase under § 2G2.1(b)(3) for knowingly engaging in the distribution of child pornography--the Court reasoned that even if Mr. Sanchez was correct that his solicitation of child pornography is not distribution, any error was harmless because his total offense level would have remained the same.   

The Court also rejected Mr. Sanchez's contention that his rights under the Double Jeopardy Clause were violated because he was sentenced for violating both 18 U.S.C. § 2251 and § 2422 based on his criminal conduct of enticing two minors to produce child pornography.  The Court held that because the two statutes do not have the same elements, there is no double jeopardy issue.  

Finally, the Court rejected Mr. Sanchez's challenge to the substantive reasonableness of his sentence.    

Williams: Defendant Forfeited Issue on Appeal re: Whether the Denial of Right to Self-Representation Automatically Renders Guilty Plea Involuntary

In United States v. Williams, Case No. 18-13890 (Mar. 30, 2022) (Jordan, Jill Pryor, Tjoflat), the Court affirmed the district court because it found that Mr. Williams had forfeited any arguments under which the Court could grant relief on appeal.  

Mr. Williams, a sovereign citizen, wanted to represent himself before the district court.  The district court held a Faretta hearing and denied Mr. Williams's request.  Mr. Williams subsequently pleaded guilty, with the assistance of counsel, and was sentenced to 151 months imprisonment.  

Mr. Williams was then assigned a new attorney on appeal.  This attorney moved to withdraw as counsel pursuant to Anders v. California, which the Court denied two times, finding at least two issues of arguable merit: (1) whether, despite later pleading guilty, the Court has discretion to review the denial of a defendant's request to proceed pro se, which is a potential structural error and, if so, (2) whether the district court erred in denying Williams's request to proceed pro se because it believed that he did not understand the risks of proceeding pro se due to his illogical legal theories.  The appellate brief failed to meaningfully address whether the guilty plea precluded the Court from addressing the Faretta issue.  As to that issue, the government noted a circuit split, with the 9th Circuit holding that an improper denial of a defendant's request for self-representation renders any subsequent guilty plea per se involuntary, thereby voiding it; and the 4th, 7th, 8th, and 10th Circuits holding that an improper denial of the right to self-representation does not render a subsequent guilty plea involuntary, so the subsequent guilty plea waives the right to appeal the improper denial.      

The Court noted that though the improper denial of the right to self-representation is structural error--which would have required reversal--it could not reach that issue because Mr. Williams's appellate counsel had failed to address the preliminary issue of what effect Mr. Williams's guilty plea had on his ability to raise that challenge.  That is, appellate counsel's failure to raise a challenge to the voluntariness of Mr. Williams's guilty plea in his initial brief forfeited the issue on appeal.  And, as a result, the Court found that it could not address the circuit split, nor the merits of the Faretta claim.  

The Court noted that, while under Campbell, it had the discretion to revive a forfeited issue, it was choosing not to here: "Even assuming that we have the discretion to revive the forfeited issue here, we cannot say that it would be appropriate to exercise our discretion and so decline to raise the voluntariness issue sua sponte."  

Said: Violation of Fla. Stat. 893.13(6)(a) Overbroad With Regard to Controlled Substance Definition

In Said v. U.S. Att'y Gen., 21-12917 (Mar. 24, 2022) (Jordan, Newsom, Tjoflat), the Court held that a violation of Fla. Stat. § 893.13(6)(a)--the Florida marijuana possession statute--did not relate to a controlled substance, as defined in 21 U.S.C. § 802, and thus did not prevent Mr. Said from accruing the necessary seven-year period of continuous residence for his application for cancellation of removal.  As such, the Court found that the BIA and IJ erred in finding that Said was ineligible for cancellation of removal.    

The Court reasoned that by the plain language of Fla. Stat. § 893.02(3), not all substances that it proscribes are federally controlled.  Section 893.02(3) includes “all parts” of the marijuana plant, while federal law does not.  For instance, federal law does not include the mature stalks of the marijuana plant or fiber produced from such stalks.  21 U.S.C. § 802(16).  This is a significant divergence, and on its own, is sufficient to establish a realistic probability of broader prosecution under Florida law.  The Court distinguished its opinion from Chamu, where petitioner presented a hypothetical form of cocaine covered by state, but not federal law, to attempt to establish overbreadth.  Here, because the stalks of the marijuana plant do exist, it cannot be argued that Florida law just uses different terminology to describe the same substance proscribed by federal law.  The Court declined to ignore the statutory text and construct a narrower statute than the plain language supports.  

Lee: 18 U.S.C. 2251(a) and 2251(d) are Separate Offenses for Double Jeopardy

In United States v. Lee, 20-13505 (Mar. 21, 2022) (Lagoa, Brasher, Tjoflat), the Court affirmed the defendant’s conviction under 18 U.S.C. 2251(a) over a double jeopardy challenge.

The defendant sent text messages to a minor requesting sexually explicit images.  The defendant was originally charged with violating 2251(d), and a jury convicted him.  Shortly thereafter, however, the Eleventh Circuit in Caniff clarified that such conduct does not violate 2251(d), and the district court granted a judgment of acquittal.  Based on the same conduct, the government brought a new indictment, charging the defendant with violating 2251(a), and the defendant moved to dismiss on double jeopardy grounds.  The Eleventh Circuit held that the district court correctly denied the motion because 2251(a) and 2251(d) are distinct offenses with different elements.  2251(d) requires proof that the defendant made a notice or advertisement involving a sexually explicit depiction of a minor, whereas 2251(a) requires proof that the defendant arranged for a minor to engage in sexually explicit conduct for the purpose of creating a depiction of that conduct.  Because there were scenarios where a defendant could violate 2251(d) but not 2251(a), and vice versa, they were not the same offense for double jeopardy purposes.