Morel: Affirming Drug Convictions After Judge Interrupted Trial to Correct Misunderstanding of Law on Conspiracy

In United States v. Morel, No. 20-14315 (Mar. 23, 2023) (William Pryor, Rosenbaum, Marcus), the Court affirmed the defendant’s convictions for importing cocaine.

First, the district court interrupted the trial to instruct the jury about the law of conspiracy after a witness incorrectly used the term incorrectly, implying that he had to personally know the defendant in order to conspire with him. The district court’s sua sponte instruction was not an discretion or an impermissible departure from the court’s neutral role, as it merely and accurately clarified the law in order to prevent confusion, and did not otherwise comment on the witness’s testimony.

Second, the evidence was sufficient to support the jury’s finding that the defendant knew that the contraband on board the vessel was cocaine in particular.  Applying the prudent-smuggler doctrine, the Court emphasized, among other facts, that the defendant was communicating and working closely with one of the co-conspirators (who knew about the cocaine), the defendant was invited to unload the cocaine (which was visible in the packages), and the defendant was privy to the time and location of the drug shipment and its final destination.

Williams: Section 404 of First Step Does Not Mandate the Reduction of a Sentence Above the Post-FSA Statutory Range

In United States v. Williams, No. 21-12877 (Mar. 23, 2023) (William Pryor, Hull, Marcus), the Court affirmed the denial of the defendant’s motion for a reduced sentence under Section 404 of the First Step Act.

The defendant was eligible for a reduced sentence, and his life sentence exceeded the 30-year statutory maximum that applied after retroactive application of the Fair Sentencing Act. However, the Court held that the district court had the discretion to leave that life sentence in place because the text of the Fair Sentencing Act did not require the court to reduce any sentence, and the Supreme Court confirmed that understanding in Concepcion.  The Court rejected the defendant’s argument that leaving a sentence above the new statutory maximum was a per se abuse of discretion.  The Court explained that defendants cannot use Section 404 to re-litigate the legality of their sentences.  Finally, the district court adequately explained its decision to deny the motion by addressing the defendant’s arguments and weighing the 3553(a) factors.

Clowers: District Courts Remain Bound by Pre-Apprendi Judge-Made Drug-Quantity Findings in First Step Act/Section 404 Proceeding

In United States v. Clowers, No. 20-13074 (Mar. 14, 2023) (Jill Pryor, Grant, Anderson), the Court affirmed the denial of a motion for reduced sentence under Section 404 of the First Step Act.

The Court first agreed with the parties that engaging in a continuing criminal enterprise involving crack under 21 U.S.C. 848 was a “covered offense” under Section 404.  The defendant received a mandatory life sentence before Apprendi, and the judge rather than a jury made drug quantity findings for purpose of sentencing.  Applying the Eleventh Circuit’s decisions in Jones/Jackson, the Court held that the district court remained bound by that judge-made drug-quantity finding when determining what the statutory range would be under the Fair Sentencing Act.  Because the statutory range would remain the same based on that judge-made drug-quantity finding, and because the defendant received the statutory minimum sentence of life, the district court could not reduce his sentence under Section 404.

Shamsid-Deen: 922(g)(9) Defendant Failed to Prove Waiver of Jury Trial Right in State Court Was Not Knowing and Voluntary

In United States v. Shamsid-Deen, No. 20-11877 (Mar. 6, 2023) (Jill Pryor, Branch, Ed Carnes), the Court, on a government appeal, reversed the district court’s order granting the defendant’s motion to suppress.

The defendant was prosecuted under 18 U.S.C. 922(g)(9) for possessing a firearm after having previously been convicted of a “misdemeanor crime of domestic violence.” By statute, a prior conviction does not qualify as a “misdemeanor crime of domestic violence” where the defendant did not knowingly waive his right to a jury trial. In this case, the district court found that exception applied and therefore granted the defendant’s motion to suppress evidence of his prior Georgia battery conviction. The government appealed and the Eleventh Circuit reversed.  Since the district court’s ruling implicated the validity of a waiver of a constitutional right, and it involved a mixed question of law and fact, the Court reviewed the district court’s waiver ruling de novo, not for abuse of discretion. The Court also determined that the defendant bore the burden of production and persuasion to show that the waiver was not knowing and voluntary, since that issue was a statutory exception that did not negate an element of the offense. Finally, the Court concluded that the defendant failed to establish that he did not knowingly and voluntarily waive his right to a jury trial in Georgia based on the language of forms he signed and a transcript of the proceedings.

Judge Jill Pryor concurred only in the judgment, without issuing a written opinion.

Turner: Rule 704(b) Error Opining on Ultimate Issue Was Harmless in Felon in Possession Trial with Insanity Defense

In United States v. Turner, No. 20-12364 (Mar. 1, 2023) (Rosenbaum, Tjoflat, Moody), the Court affirmed the defendant’s felon in possession conviction.

At trial, the defendant raised an insanity defense.  Over the defendant’s objection, the government’s expert psychologist who had evaluated the defendant testified that he was able to appreciate the nature and quality and wrongfulness of his acts.  The Eleventh Circuit held that this testimony violated Rule 704(b) because it went to his mental state, which was an element of his insanity defense.  However, the Court held that this error was harmless because, even though the district court instructed the jury on the insanity defense, the defendant’s lay testimony of insanity was insufficient as a matter of law to establish that he had a severe mental disease that caused his wrongful conduct, as required by the Insanity Defense Reform Act of 1984.

Judge Rosenbaum dissent, opining that the error was harmless.  She emphasized that the majority usurped the role of the jury, the evidence was sufficient to instruct the jury, and the government failed to meet its burden to show that the Rule 704(b) error was harmless, as the insanity issue was important and close, the government intentionally elicited and emphasized the testimony, and there was no limiting instruction.

Heaton: Affirming Convictions under § 841(a) post-Ruan

In United States v. Heaton, No. 20-12568 (Feb. 14, 2023) (Wilson, Jill Pryor, Hull), the Court affirmed Dr. Heaton's convictions.   

Dr. Heaton was charged with one count of conspiracy to unlawfully distribute and dispense controlled substances, in violation of 21 U.S.C. §§ 841(b)(1)(C), 843, & 846; 102 counts of unlawful dispensing of controlled substances to patients, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); and 27 counts of aiding and abetting a patient's acquisition of controlled substances by deception, in violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2.  He proceeded to trial and was found not guilty on the conspiracy and guilty on all substantive counts.  

On appeal, he challenged the district court's jury instructions.  He first challenged the court's use of "or" instead of "and" in its § 841(a) offense instruction.  He argued that § 841(a) requires the government to prove that he prescribed medication both "outside the course of professional practice" and "for no legitimate medical purpose."  The Court disagreed, citing to prior caselaw and 21 C.F.R. § 1306.04(a). 

Dr. Heaton next argued that the court's instructions as to mens rea for § 841(a) ran afoul of the Supreme Court's recent decision in Ruan.  More specifically, he argued that the district court erred in instructing the jury to apply an objective standard to the "outside the usual course of professional practice" requirement.  The Court agreed that because the instruction allowed the jury to convict Dr. Heaton without considering whether he knowingly or intentionally issued prescriptions outside the usual course of professional practice, the jury instruction was erroneous under Ruan.  The Court, however, found any instructional error to be harmless because the evidence extensively proved beyond a reasonable doubt that Dr. Heaton knew his prescriptions were issued outside the usual course of professional practice.  In so holding, the Court distinguished this case from that of Ruan on remand, wherein the Court found the instructional error not to be harmless.   

Finally, the Court rejected Dr. Heaton's argument that § 841 is unconstitutionally vague as applied to him.  

Jackson: Affirming Denial of Motion to Reduce Sentence post-Concepcion

In United States v. Jackson, No. 19-11955 (Feb. 3, 2023) (William Pryor, Grant, Jung (M.D. Fla.)), the Court, on remand from the Supreme Court post-Concepcion, reinstated its prior decision affirming the denial of relief.  

Jackson moved to reduce his sentence under the First Step Act, arguing that he was eligible for a sentence reduction because a judge, not a jury, made the drug-quantity finding that increased his statutory range, in violation of Apprendi and Alleyne.  The Court affirmed the denial of his motion, holding that although he was convicted of a "covered offense," he did not prove that the reduction he sought would be "as if . . . the Fair Sentencing Act . . . were in effect at the time the covered offense was committed."  This was so because the Court held that in deciding motions for reduced sentences under the First Step Act, district courts may rely on earlier judge-found facts that triggered statutory penalties that the Fair Sentencing Act later modified.  In Mr. Jackson's case, because his sentence would have remained the same following consideration of the court's drug-quantity finding, any reduction would not be "as if" the Fair Sentencing Act had been in effect. 

The Court reaffirmed its holding after the Supreme Court's decision in Concepcion.  The Court first explained that Concepcion did not abrogate its holding that the district court is bound by a previous finding of drug quantity that could have been used to determine the movant's statutory penalty at the time of sentencing.  It so reasoned because, unlike Concepcion, its decision was concerned with an issue that arose before the sentencing court's discretion came into play--that is, determining how much of a drug the defendant possessed.  Concepcion, by contrast, addressed an issue that arises only after drug quantity and the corresponding statutory penalties have been established--that is, which factors the district court may consider in deciding an appropriate sentence.  The Court reaffirmed its conclusion that movants may not use a First Step Act proceeding to relitigate a drug-quantity finding.       

The Court next explained that Mr. Jackson could not use a motion for a reduced sentenced to correct an error based on Apprendi.  That his direct appeal was pending when Apprendi was decided did not change the calculus because a First Step Act motion cannot masquerade as a direct appeal.  Just as a movant may not use Apprendi to collaterally attack his sentence, he cannot rely on Apprendi to redefine his offense for purposes of a First Step Act motion.    

 

  

In re Grand Jury FGJ-21-01-MIA: Civil Contempt For Failing to Comply with Grand Jury Subpoena Was Not Appealable Without Accompanying Sanctions Order

In In re: Grand Jury Subpoena, FGJ-21-01-MIA, No. 21-13651 (Jan. 31, 2023) (Wilson, Jordan, Brasher), the Court dismissed the appeal for lack of jurisdiction.

The appellant was the custodian of business entities that were served with subpoenas to appear before a grand jury, produce documents, and certify that the documents satisfied the business records exception to hearsay. The appellant moved to quash the subpoenas and asserted a Fifth Amendment act-of-production privilege.  The district court denied the motion and then held him in civil contempt after he refused to comply.  However, the district court stayed issuance of sanctions pending appeal.  Applying Eleventh Circuit precedent, and disagreeing with Second Circuit precedent, the court of appeals held that a contempt order must be accompanied by sanctions in order to be an appealable final judgment.  Accordingly, the Court dismissed the appeal for lack of jurisdiction.

King: No Plain Tapia Error Despite Referencing Need for Drug Abuse Program

In United States v. King, No. 21-12963 (Jan. 23, 2023) (Rosenbaum, Grant, Tjoflat), the Court—without oral argument—affirmed the defendant’s 36-month sentence for violating his supervised release.

The Court rejected the defendant’s arguments that his sentence was substantively unreasonable.  Although the defendant argued that the sentence was a major upward variance from the guideline range of 4-10 months, he repeatedly accepted responsibility, and he was less than a year away from completing his supervision, the district court acted within its discretion by weighing the 3553(a) factors.

Responding to the dissent’s argument, the Court found that the district court did not commit plain error by sentencing the defendant based on his need for rehabilitation, in violation of the Supreme Court’s decision in Tapia.  The defendant forfeited that issue by failing to raise it on appeal, and his argument challenging the substantive reasonableness of his sentence did not cover this procedural error.  Even assuming that the district court committed an error, it did not plainly err or violate the defendant’s substantial rights.  The district court does not violate Tapia merely by discussing how defendants would benefit from a drug abuse program after it imposes sentence; it errs only when it imposes or extends a sentence for the purpose of promoting rehabilitation, which did not clearly occur here.

Judge Rosenbaum dissented because she believed that the district court plainly erred by giving significant weight to rehabilitation when imposing the sentence.

Scott: Upholding Medicare Fraud Convictions Over Challenge that Medical Testing Was Covered

In United States v. Scott, No. 21-11467 (Jan. 20, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s healthcare fraud convictions.

First, and assuming that de novo review applied, the Court rejected the defendant’s belated challenge to the indictment on the ground that Medicare actually covered the testing he performed.  And even if it did, he would not have been entitled to dismissal of the indictment, as Medicare coverage for the particular tests would have been a factual issue to be resolved at trial, and the defendant failed to make that argument in the district court.

Second, the Court concluded that the evidence was sufficient to support the convictions.  Specifically, the Court found sufficient evidence to support his willful intent to defraud Medicare based on circumstantial evidence.

Dupree (En Banc): Inchoate Offenses are not "Controlled Substance Offenses" under the Guidelines Because the Text is Unambiguous, Precluding Deference to the Commentary

In United States v. Dupree, No. 19-13776 (Jan. 18, 2023), the en banc Court held that the definition of “controlled substance offense” in U.S.S.G. 4B1.2(b) does not include inchoate offenses like conspiracy.

In an opinion by Jill Pryor, and joined by Chief Judge Bill Pryor and Judges Wilson, Jordan, Rosenbaum, Newsom, Lagoa, and Brasher, the Court held that the definition in the text of 4B1.2(b) unambiguously excludes inchoate offenses.  Because there was no ambiguity, the Court was precluded from deferring to the commentary’s broader definition (expressly including inchoate offenses) under the Supreme Court’s recent decision in Kisor clarifying its earlier decision Stinson.

Chief Judge Pryor concurred in order to correct a common misconception.  The Guidelines’ commentary typically goes through the same notice-and-comment and congressional review process as amendments to the text of the Guidelines themselves. He encouraged the Commission to move what normally goes in the commentary into the text of the Guidelines.

Judge Grant concurred in the judgment, agreeing with the result but criticizing the majority for effectively overruling Stinson, which she viewed as distinct from the administration law cases upon which it relied.  She feared that the majority’s opinion may “unsettled much of our case law” because courts must now examine whether the text of the Guidelines is ambiguous before consulting the commentary.

Judge Luck, joined by Judge Branch, dissented.  He opined that the majority’s application of Kisor to Stinson effectively overruled Stinson, and Kisor did not apply to Stinson at all.

Oudomsine: Upholding Upward Variance in Pandemic Benefits Fraud

In United States v. Oudomsine, No. 22-10924 (Jan. 18, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed the defendant’s 36-month sentence for providing false information to obtain pandemic-related benefits.

The district court varied upward to 36 months from a guideline range of 8-14 months.  The sentence was not procedurally unreasonable because the district court adequately explained the variance.  The district court emphasized that the fraud was atypical compared to other fraud cases, in that the defendant used his education to steal money from a federal relief program designed to save the country during the pandemic, and the district court did not rely on any clearly erroneous facts.  Nor was the sentence was substantively unreasonable.  The Court rejected the defendant’s argument that the district court gave too much weight to deterrence since the pandemic benefits program was now over, and that the court did not “like him” because he spent much of the money to buy a single Pokemon card.  

Moran: Upholding Convictions for Attempted Child Pornography Production

In United States v. Moran, No. 21-12573 (Jan 13, 2013) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s convictions for attempting to produce child pornography.

The defendant commented on several “mom blog” posts asking mothers to display sexually explicit imagines of their young daughters.  First, the Court rejected the defendant’s sufficiency argument that he lacked the specific intent to have bloggers post child pornography because, even if that was unlikely to happen, he still could have desired that result. And that was true even if he also intended to troll people online.

Second, the evidence was sufficient to allow a jury to conclude that the defendant knew that, if produced, the child pornography he sought would travel in interstate commerce.  The Court rejected the defendant’s argument that he first had to know that his attempt would succeed.

Finally, and reviewing for plain error, the evidence was sufficient to show that the defendant took a “substantial step” toward committing the offense.

Harrison: Georgia robbery statute is divisible, and Georgia robbery by intimidation is a "crime of violence" under the enumerated offense clause

In United States v. Harrison, No. 21-14514 (Jan. 10, 2023) (Wilson, Jill Pryor, Ruiz), the Court held, on a government appeal, that Georgia’s robbery statute is divisible, and that Georgia robbery by intimidation is a “crime of violence” under the Guidelines.

First, the Court held that, under Mathis, Georgia’s robbery statute was divisible into three separate crimes: robbery by force, robbery by intimidation, and robbery by sudden snatching.  The Court reached that conclusion based on the text of the armed robbery statute, Georgia case law, and the Georgia jury instructions.  The Court rejected the Fourth Circuit’s contrary conclusion based on its reading of the jury instructions.  Having determined that the defendant was convicted of robbery by intimidation, the Court held that it was a “crime of violence” under the enumerated offense clause of the Guidelines because Georgia robbery by intimidation satisfied the “generic” definition of robbery. 

Esformes: Upholding Convictions/Sentences Over Numerous Challenges and Government Misconduct

In United States v. Esformes, No. 19-13838 (Jan. 6, 2023) (William Pryor, Jill Pryor, Grant), the Court affirmed the defendant’s healthcare fraud/kickback/money laundering convictions, as well as restitution and forfeiture awards. 

As an initial matter, the defendant’s challenges to his 20-year prison sentence were moot because President Trump commuted that part of his sentence.  The defendant also argued that the commutation prevented the government from re-trying him on one count on which the jury hung.  However, the Eleventh Circuit lacked jurisdiction to review that argument because the hung count was not part of the final judgment over which the Court had jurisdiction.

Second, the district court properly declined to dismiss the indictment or disqualify the prosecution team in light of admitted government misconduct intruding on attorney-client privilege, because the defendant could not show “demonstrable prejudice.”  Circuit precedent foreclosed any presumption of prejudice, and the defendant did not make any effort to show prejudice, which the district court found did not exist because the privileged materials did not form the basis of the charges, were not admitted at trial, and did not give the government any strategic advantage.  Whether the prosecutors acted in bad faith was not relevant.

Third, federal prosecutor Elizabeth Young did not have a conflict of interest.  Her professional interest in avoiding and challenging sanctions did not make her an “interested prosecutor” that required her recusal.  And she did not violate the advocate-witness prohibition by participating in the hearing on the motion to disqualify her.  The defendant invited any such error by calling her to the stand.  And, in any event, this argument would fail because she was not testifying to the jury about the charges but rather to the magistrate judge about her own investigatory work.

Fourth, the district court properly admitted the government’s expert testimony.  The district court completed the Daubert evaluation before admitting the testimony, and it was not an abuse of discretion for the court to defer ruling until after the jury heard the testimony.  Nor was it an abuse of discretion to actually admit the testimony under Daubert.

Fifth, the court’s restitution order was not clearly erroneous because the loss amount was supported by record evidence.

Finally, the court’s forfeiture order was lawful because the underlying money laundering convictions were supported by sufficient evidence.  And Supreme Court precedent permitted the judge to make its own calculation of the forfeiture amount, even if it differed from the jury’s special verdict.

 

Judge Grant authored a concurrence.  Although it was harmless here (because the expert opinion was properly admitted), she opined that deferring a ruling on admissibility of expert testimony until after the jury hears it is fraught with risk and should be avoided.  

Downs: Transferring Photos from Phone to Hard Drive is "Production" Under Child Pornography Statutes

In United States v. Downs, No. 21-10809 (Jan. 6, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s convictions for producing and possessing child pornography.

First, the Court held that the evidence was sufficient to satisfy the interstate-commerce element because transferring photos from a cell phone to hard drives constituted “production,” and the hard drives were manufactured abroad.

Second, the district court did not err by discharging an impaneled-but-not-sworn jury in light of an impending storm.  Because the jury was never sworn, jeopardy never attached, and the defendant therefore had no right to have his case decided by the jury that was initially impaneled.  Nor did the district court plainly err by discharging the panel outside the defendant’s presence; the pre-trial hearing about the discharge of an unsworn jury did not implicate the Confrontation Clause or the due process right to be present in order to defend against the charges.  While Rule 43 plainly did require that the defendant be present, this error did not affect his substantial rights.

Third, the victim testified that the defendant took photos of her using a flip phone, while the forensic expert testified that the photos were taken with a particular Samsung model.  The defendant argued that, because that Samsung model was not a flip phone, the victim’s testimony was “factually impossible” and the evidence was therefore legally insufficient.  The Court rejected that argument, noting that credibility questions were for the jury to resolve, and there was no evidence about whether the Samsung model was a flip phone or not.

Ruan: Vacating Substantive 841 Convictions due to Erroneous Jury Instruction on Mens Rea

In United States v. Ruan, No. 17-12653 (Jan. 5, 2023) (Wilson, Newsom, Coogler) (per curiam), the Court affirmed in part and vacated in part the defendants' convictions.

This case was on remand from the Supreme Court, which clarified the mens rea standard for a doctor’s liability under the federal drug statute, 21 U.S.C. 841.  The Supreme Court explained that the defendant must have knowingly or intentionally dispensed a controlled substance, and knowingly or intentionally did so in an unauthorized manner.  What matters in that regard is the defendant’s subjective mens rea.  Applying that new standard to the facts of this case, the Eleventh Circuit held that the district court’s “good faith” instruction was insufficient because it did not make clear that the defendant’s subjective intent was what mattered.  As to the defendants’ substantive drug convictions, the Eleventh Circuit held that this erroneous instruction was not harmless because the jury may have convicted based on an objective reasonable-doctor standard and may not have convicted had it been properly instructed on a subjective standard.  However, the Court found that the erroneous instruction was harmless as to the remaining convictions for conspiracy to violate the Controlled Substances Act, conspiracy to commit health care fraud, conspiracy to violate the Anti-Kickback statute, conspiracy to commit mail or wire fraud, conspiracy to violate RICO, and money laundering.

Jackson: Court Reverses Course and Applies Version of CSA Schedules in Place When Defendant Was Convicted of Prior State Drug Offense

In United States v. Jackson, No. 21-13963 (Dec. 13, 2022) (Rosenbaum, Jill Pryor, Ed Carnes), the Court reversed course and held that the Supreme Court's reasoning in McNeill v. United States, 563 U.S. 816 (2011), requires the conclusion that ACCA's "serious drug offense" definition incorporates the version of the controlled-substances list in effect when the defendant was convicted of his prior state drug offense.

Mr. Jackson's prior convictions included convictions for violating Fla. Stat. § 893.13 in 1998 and in 2004 with conduct involved cocaine.  In 1998 and in 2004, § 893.13 criminalized selling, manufacturing, delivering, or possessing with the intent to sell, manufacture, or deliver, cocaine and cocaine-related substances, including a substance called ioflupane.  The federal version of Schedule II of the Controlled Substances Act ("CSA") also encompassed ioflupane in 1998 and 2004.  The federal government only exempted ioflupane from Schedule II in 2015.  So, in 2017, when Mr. Jackson possessed the firearm that resulted in his federal conviction, ioflupane was not a controlled substance "as defined . . . [under] the Controlled Substances Act."

Be that as it may, however, the Court ultimately held that ACCA's definition of "serious drug offense" incorporates the version of the controlled-substances schedules in effect when the defendant was convicted of his prior state drug offense.  The Court so held because of the Supreme Court's reasoning in McNeill, wherein the Supreme Court construed ACCA’s third criterion for qualifying prior state drug offenses: the requirement that the state law prescribe “a maximum term of imprisonment of ten years or more” as a punishment for that drug offense.  In line with McNeill, the Court reasoned that it could not be correct that subsequent changes in state law could erase an earlier conviction for ACCA purposes.  The Court also reasoned that because it must construe the definition of a federal "serious drug offense" to incorporate the CSA in existence at the time of the prior federal drug conviction, it could not simultaneously construe the federal “serious drug offense” definition’s single use of that term—Controlled Substances Act—to incorporate the federal drug schedules in effect at the time the defendant committed the federal firearm offense.  In the Court's view, the structure of ACCA’s parallel definitions of “serious drug offense” for state and federal prior convictions logically requires the conclusion that the state-offense definition incorporates the federal drug schedules in effect at the time of the prior state drug conviction.  As such, Mr. Jackson's prior cocaine convictions qualify as "serious drug offenses" under the ACCA.  

Judge Rosenbaum filed a separate concurrence to express "deep[] concern[] that [the Court's] reading seemingly requires the 'ordinary person' to be an expert in the ACCA and in historical knowledge of the federal drug schedules."  She noted that incorporating the federal drug schedules in effect at the time of the federal firearm offense "would be far more consistent with how [courts] generally construe statutes," as well as consistent with "Congress's determination to decriminalize certain substances."  As a result, she "urge[d]" Congress to consider amending the statute to incorporate the version of the controlled-substances list in effect when the defendant commits his federal firearm offense."              

Garcon: En Banc Court Holds Disqualifying Safety-Valve Criteria in 3553(f)(1)(A)-(C) Are Conjunctive, Not Disjunctive

In United States v. Garcon, No. 19-14650 (Dec. 6, 2022), the en banc Court--in an opinion authored by Chief Judge Pryor--considered whether, in the First Step Act, the word "and" means "and" with regard to a grant of safety-valve relief.  More specifically, the en banc Court considered the language of 18 U.S.C. § 3553(f)(1), which empowers a court to grant a criminal defendant relief from a mandatory minimum sentence only if "the defendant does not have" "more than 4 criminal history points," "a prior 3-point offense[,] . . . and . . . a prior 2-point violent offense."    

The Majority--in an opinion drafted by Chief Judge Pryor and joined in full by Judges Wilson, Jill Pryor, Newsom, Luck, and Lagoa--after considering the text of the statute and applying the ordinary-meaning canon, held that because the conjunctive "and" joins together the enumerated criminal history characteristics in (A)-(C), a defendant must have all three before he is ineligible for safety-valve relief.  In so holding, the Majority specifically rejected the government's distributive reading of the word "and," declining "to adopt that novel reading when it appears to have been crafted by the government specifically for this statute to achieve its preferred outcome."      

Judge Rosenbaum concurred in the judgment only, noting that she would have resolved the issue by applying the rule of lenity.  

Judge Newsom, joined by Judge Lagoa, filed a separate concurrence to note that no canon of construction can make the word "and" mean "or" because the text is unambiguous.  If Congress made a mistake, it should exercise its authority to amend the statute; "Article III doesn't empower [the Court] to do Congress's job for it."

Judge Jordan dissented, explaining that, depending on the context, the word "and" can be read disjunctively in legal texts.  He also set out the views of the Senators who proposed the provision that became § 3553(f)(1) as further support.  

Judge Branch, joined in full by Judges Grant and Brasher, and in part by Judge Jordan, dissented.  She noted the circuit split on this issue before reasoning that the Majority's interpretation was contrary to the structure and context of the statute, and created two surplusage problems--first, it renders an entire subsection, (f)(1)(A), redundant; and second, it disregards Congress's plain instruction that all pertinent statutory determinations for purposes of § 3553(f)(1) are to be made "as determined under the sentencing guidelines."  After consideration of context and structural cues, in her opinion, the best reading of § 3553(f)(1) is that it bars safety-valve relief for defendants who have any one of the enumerated criminal history characteristics in (A)-(C).      

Judge Brasher authored a separate dissent to comment on criminal-history-based sentencing and to "give some advice to district judges about how to deal with the majority's decision."   

BGG: In Government Appeal, District Court Abused its Discretion by Dismissing Information With Prejudice Under Rule 48(a)

In United States v. B.G.G., No. 21-10165 (Nov. 22, 2022) (Wilson, Luck, Lagoa), the Court, on appeal by the government, vacated the dismissal of an information with prejudice under Rule 48(a).

During the pandemic, the Southern District of Florida imposed a temporary moratorium on grand juries.  Concerned that they would not be able to charge the defendant within the statute of limitations, prosecutors filed an information before the statute of limitations expired.  Then, after the limitations period expired, the government moved to dismiss the information under Rule 48(a) without prejudice, which it believed would have triggered a six-month extension within which they intended to bring an indictment.  The district court, however, dismissed the information with prejudice, precluding a subsequent indictment.

On appeal, the Eleventh Circuit held that the district court abused its discretion by committing five separate legal errors.  First, the district court failed to apply the presumption of good faith to the government’s Rule 48(a) motion to dismiss.  That presumption applies even where, as here, the government articulates a reason for the dismissal.  Second, the district court failed to require the defendant to rebut the presumption by showing that the government sought the dismissal in bad faith.  Third, the district erroneously focused on the government’s reasons for filing the information (to preserve the availability of a future prosecution) rather than its reasons for seeking the dismissal (the defendant’s refusal to waive an indictment and consent to an information).  Fourth, the district court failed to apply the correct test in deciding whether to grant leave to dismiss even where the government overcomes the presumption of good faith: it failed to find that the dismissal went to the merits or demonstrated a purpose to harass.  Finally, the district court erred in dismissing with prejudice; where the government, the moving party, seeks dismissal under Rule 48(a) without prejudice before trial, then any such dismissal must be without prejudice and cannot bar a second prosecution.  The Court expressed no view on whether any subsequent prosecution would be barred by the statute of limitations.

Judge Wilson dissented.  He opined that the government’s dismissal was in bad faith and for the purpose of harassment, and it therefore should have been dismissed with prejudice.  In his view, the government sought to achieve a tactical advantage contrary to the defendant’s rights.