Eleventh Circuit Court of Appeals - Published Opinions

Friday, May 24, 2019

Babcock: Warrantless Seizure of Cell Phone Was Supported by Probable Cause and Exigent Circumstances

In United States v. Babcock, No. 17-13678 (Newsom, W. Pryor, and Vratil), the Court affirmed the denial of a motion to suppress and the defendant's child pornography sentence.

First, the Court rejected the government's argument that officers were permitted to detain the defendant's cell phone under Terry based on reasonable suspicion that he had committed a crime.  The Court concluded that the detention of the phone exceeded the scope of Terry because the officers had detained the phone for two days, it constituted a significant intrusion into a possessory interest, and the officers did not explain why they delayed for two days. 

However, the Court concluded that, under the particular facts of the case, the officers had probable cause to believe that the phone contained evidence of a crime and that exigent circumstances—the need to prevent him from deleting the evidence on the phone—allowed them to seize the phone and then subsequently obtain a warrant before searching it.

The Court also affirmed the defendant's sentence.  First, reviewing for plain error, the Court rejected the defendant's argument that application of 2G2.1(b)(2) and 4B1.5(b) was impermissible double counting.  Second, the Court found that the 324-month sentence, a downward variance, was substantively reasonable.

Friday, May 17, 2019

Thompson: Federal Second-Degree Murder is Crime of Violence Under 924(c)

In Thompson v. United States, No. 18-10488 (May 17, 2019) (Hull, William Pryor, Grant), the Court held that second-degree murder under 18 U.S.C. 1111 was a crime of violence under 924(c).

First, because the movant was in the successive posture, the Court held that his Johnson/Dimaya claim failed in light of the Court's decisions in Ovalles, Garrett, and Solomon.

Second, the Court held that the offense was a crime of violence under 924(c)'s elements clause, relying on the Court's precedent holding that Florida second-degree murder satisfied the ACCA's elements clause.  And, regardless of that precedent, the Court concluded it satisfied the elements clause because, by requiring the killing of another person, it necessarily required a level of force "capable" of causing physical pain or injury.

Monday, May 13, 2019

Grimon: Failing to Allege or Prove Interstate Commerce Element of ID Theft Statute Does not Deprive Court of Subject Matter Jurisdiction

In United States v. Grimon, No. 17-15011 (May 13, 2019) (Hull, Marcus, Grant), the Court affirmed the defendant's identity-theft convictions.

On appeal, the defendant argued that the factual proffer supporting her guilty plea was insufficient to establish that unauthorized access devices affected interstate commerce, and therefore the district court lacked subject matter jurisdiction.  The Court rejected that argument on the ground that the interstate-commerce element was not jurisdictional.  It explained that the interstate-commerce element went to whether Congress had the power to regulate the conduct, not to whether the district court had subject matter jurisdiction over the case.  As a result, even if an indictment or factual proffer fails to sufficiently allege facts affecting interstate commerce, that would not deprive the court of subject matter jurisdiction over the offense; it would go only to the sufficiency of the evidence.  All that's required for subject matter jurisdiction is an indictment charging a violation of a valid federal law.  The Court rejected the defendant's reliance on Iguaran, a title 46 case, on the ground that the statute there required the district court to make a preliminary determination of subject matter jurisdiction.

Wednesday, May 08, 2019

Rothenberg: Courts Not Required to "Disaggregate" Victim Losses in Child Pornography Restitution

In United States v. Rothenberg, No. 17-12349 (May 8, 2019) (Hull, Ed Carnes, Rosenbaum), the Court affirmed 8 child pornography restitution awards and vacated 1 award, providing a detailed analysis how courts should calculate restitution in these cases.

Applying the Supreme Court's decision in Paroline, and reviewing the opinions from other circuits in detail, the Court primarily held, after a lengthy discussion, that district courts are not required to "disaggregate" the victim's losses caused by the initial abuser, distributors, and possessors when calculating restitution.

Next, the Court held that Paroline abrogated Eleventh Circuit precedent holding that restitution cannot be based on loss estimates that were made before the particular defendant's arrest and thus before the victim was apprised of his offense.

Next, the Court held that, although two victims did not submit expert reports detailing their losses, no such report was required.  As to one of the victims, the Court found that the evidence supported the award because the victim's attorney submitted a declaration estimating her likely losses based on the attorney's experience representing similar victims.  As to another victim, however, the Court found the evidence insufficient because the victim's attorney did not submit any reasonable estimate of the victim's total losses.  Rather, that attorney relied on a civil law and a proposed bill that never became law, neither of which established her losses.

Thursday, May 02, 2019

Spence: Courts may Consider Extraterritorial Conduct as Relevant Conduct at Sentencing

In United States v. Spence, No. 17-14976 (May 2, 2019) (Anderson, Ed Carnes, Martin), the Court held that courts may consider extraterritorial conduct to impose an enhancement under the Guidelines.

On appeal, the defendant argued that, in light of the presumption against extraterritorial application of legislation, his distribution of child pornography videos while in Jamaica should not be used to enhance his guideline range.  Joining the Seventh, Eighth, and Tenth Circuits, the Court declined to extend that presumption to a sentencing court's consideration of relevant conduct.  The Court emphasized that: the defendant was not convicted for conduct outside the country, and considering conduct outside the US for sentencing purposes does not mean that he was sentenced for such conduct; and no statutory or Guidelines provision limited a court's consideration to conduct in the US.  The Court acknowledged that its decision might be viewed as being in tension with decisions from the Second and Ninth Circuit but found them unpersuasive and inapplicable to this case.

Tuesday, April 30, 2019

Hano: DNA Testing Exception to Statute of Limitations Applied, and Bruton Does not Apply to Non-Testimonial Statements

In United States v. Hano, No. 18-10510 (Apr. 30, 2019) (William Pryor, Newsom, Rosenthal), the Court upheld the defendants' Hobbs Act robbery convictions.

First, the Court rejected the defendant's argument that the prosecution fell outside the statute of limitations because the statutory DNA testing exception did not apply.  Under that exception, where DNA testing implicates a person in a felony, that event re-starts the statute of limitations.   The Court rejected the defendant's argument that this exception applied only to cases where the default statute of limitations has not yet expired at the time of the DNA testing.

Second, the Court rejected three evidentiary arguments.   In an extended discussion, the Court found no Bruton error in admitting the statements of one of the co-defendants because those statements were non-testimonial and thus fell outside of the Bruton doctrine.  The Court also declined to extend Bruton to non-testimonial statements as a matter of procedural due process.  The Court also found no error in admitting evidence under Rule 404(b)/403 that the defendant traveled to Cuba shortly after the robbery for the purpose of showing that he fled with the proceeds.  And the Court found that the defendant's attempt to exclude DNA evidence from the getaway car was moot because the government did not introduce that evidence in trial.

Third, the Court upheld the denial of the defendant's motion to subpoena the federal DNA database unit.  The defendant sought to access the DNA profile of another person under Brady because other DNA had been discovered on the ski mask at the crime scene.  The Court reasoned that the DNA profile would have, at best, excluded the other person as a contributor of the DNA but could not have proven that his DNA was on the mask.  And, even if the defendant could prove that, it would have shown only that this person came into contact with the items, but would not undermine that the defendant had worn the mask. 

Fourth, the Court found the evidence sufficient to support the convictions for Hobbs Act robbery and Hobbs Act conspiracy. 

Fifth, applying plain error, the Court concluded that the government did not improperly comment during closing argument on one of the defendant's decision not to testify.  The Court found that the prosecutor's comment was instead about defense counsel's failure to rebut or explain evidence.

Lastly, the Court upheld a four-level enhancement under 2B3.1(b)(2)(D) for "otherwise using" a dangerous weapon in the commission of the robbery.  The defendant did more than brandish the firearm because he pointed it at a specific person in an effort to create fear and facilitate compliance with a demand.  And he also implicitly threatened another person who was present.  It did no matter whether the defendant used a toy gun and pointed it at someone who was in on the plot.

Monday, April 29, 2019

Lester: Full Court Declines to Rehear Whether Johnson Retroactively Applies to the Mandatory Guidelines

In Lester v. United States (Apr. 29, 2019), the full court declined to rehear en banc whether Johnson retroactivley applies to the mandatory pre-Booker residual clause in the Guidelines.

Writing for himself, Judge William Pryor authored a lengthy opinion explaining why any ruling extending Johnson to the Guidelines would not be a substantive rule, and therefore would not have retroactive effect in cases on collateral review.  He emphasized that, unlike in the ACCA context, the defendant's sentence would remain within the statutory ranges authorized by Congress, and he could receive the same sentence today.   He also reasoned, in a lengthy discussion, that judicial decisions don't actually change the law but rather recognize what the law has always been.

Judge Martin, joined by Judges Rosenbaum and Jill Pryor, opined that the Eleventh Circuit's decision in In re Griffin was wrong, both that Johnson did not apply to the mandatory Guidelines and that any such ruling would not be retroactive.

Judge Rosenbaum, joined by Judges Martin and Jill Pryor, wrote separately in response to Judge Pryor's more theoretical comments that the Guidelines were never mandatory at all, and that judicial opinions don't actually change what the law always has been.  "He reasons that since the Supreme Court in Booker found that the mandatory Guidelines violated the Sixth Amendment, they 'were never really mandatory,' even though courts applied them that way for two decades.  Hmm.  I doubt the perhaps 1,000-plus inmates who sit in prison right now because a court sentenced them using a mandatory version of the Guidelines with an indisputably unconstitutionally vague career-offender clause would agree. . . .  Under Pryor's reasoning, the Guidelines were never mandatory, but to inmates like Lester, they will always be mandatory, since these prisoners remain subject to their punishment.  This heads-I-win-tails-you-lose logic cannot withstand scrutiny."

Delva: Upholding Identity-Theft and Tax Fraud Convictions and Sentences Over Various Challenges

In United States v. Delva, No. 16-12947 (Apr. 29, 2019) (Hull, Marcus, Grant), the Court affirmed the defendants' identity-theft and tax fraud convictions and sentences.

First, the Court upheld the denial of a suppression motion under the automobile exception because probable cause existed to search the defendant's automobile and, in any event, the evidence would have been inevitably discovered.

Second,  the Court found the evidence sufficient to support that the defendant knowingly participated in the criminal activities--including that the defendant knew that the PII belonged to real people, since the fraud was successfully using that information to obtain tax refunds.

Third, the Court found no abuse of discretion in permitting an experienced detective to testify as an expert about the meaning of jargon used in stolen identity refund fraud.

Fourth, the Court upheld the application of a 2-level enhancement under 2B1.1(b)(15)(B) for possession of a firearm in connection with the offenses.  Amidst all the defendants' fraud-related materials and money, they had a rifle leaning up against the wall in the same room and at the same time as they were conducting their fraudulent activities.  One of the defendants also admitted in a post-Miranda statement that firearms were kept in the house to protect them from being robbed.

Lastly, the Court found the defendant's 84-month guideline-range sentence to be substantially reasonable.