The 11th Circuit Board

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I have no idea what kind of music Judge Martin listens to, but I am willing to bet she is a fan of The Police.  In the inimitable words of that glorious band:

Just a castaway
An island lost at sea
Another lonely day
With no one here but me
More loneliness
Than any man could bear
Rescue me before I fall into despair
I’ll send an SOS to the world
I’ll send an SOS to the world
I hope that someone gets my
Message in a bottle

Judge Martin writes dissents that any young, working-class Englishman in the cold, gray Land of Thatcher would love.  In United States v. White, Judge Martin has sent another message in a bottle, urging her peers, and also we lawyers, to send help.  The Armed Career Criminal Act dramatically enhances a defendant’s sentence when he has three or more violent felonies or serious drug offenses.  A serious drug offense is a state crime that involves the possession of drugs, but only when that possession is “with intent to manufacture or distribute.”  In many states, including Alabama and Georgia, a person may be convicted of “trafficking” drugs based only on proof that he possessed at least a certain amount (say, 28 grams of cocaine under the Georgia statute), but nothing more.  The Eleventh Circuit has held for many years that although the statutes include no intent-to-distribute element, these mere-possession crimes count as serious drug offenses.  Judge Martin beseeches her audience, and that audience includes us, to reverse course.  The current rule asks judges to legislate from the bench.  Is the simple possession of one ounce of cocaine for personal use or for sale?  How is a federal judge to answer that question?  The results can only be arbitrary and messy.  The Fourth Circuit, for one, holds that the possession of 28 grams does not allow a judge to infer an intent to distribute.  With her usual blunt, persuasive prose, Judge Martin’s SOS to the world convinced, at the very least, Judge Jill Pryor, who joined her once again in dissent.

In a scene only Quentin Tarantino could love, our hero in United States v. Caraballo kidnaps a young mother and her children.  He and his compatriots break three bones in the mother’s face, damage her nervous system with a stun gun, force her to drop her infant on a concrete floor, and demand $70,000 ransom.  Following a guilty verdict at trial, the district court imposes a life sentence, based upon a total offense level of 43.  That calculation includes a two-level enhancement for use of a dangerous weapon under U.S.S.G. § 2A4.1(b)(3).  The commission later amends the guidelines to eliminate this two-level enhancement for defendants who, like Caraballo, have also suffered a § 924(c) conviction.  So what to do?  Following a retroactive amendment to the sentencing guidelines, a defendant may file a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2).  Caraballo files a motion because his guideline range drops from life to 324-405 months imprisonment.  The judge denies the motion because, he says, Caraballo has shown no remorse for his stunningly violent crimes.  Caraballo renews the motion (this time with a lawyer) and attaches a statement expressing, at long last, his acceptance of responsibility.  The court denies the motion again because, it says, the factors in 18 U.S.C. § 3553(a) continue to support a life sentence.  Caraballo appeals.  In a dry and bloodless opinion, with prose only a lawyer could love, the Eleventh Circuit affirms the district court’s denial of Caraballo’s § 3582(c)(2) motion.  So long as a district court understands that it may reduce a sentence under § 3582(c)(2), it need not do so if the § 3553(a) factors counsel otherwise.

Poor Lavoris Martin will surely need a swig of his namesake mouthwash to rinse the bad taste out of his mouth after the Eleventh Circuit dismissed his appeal.  The district court denied Martin’s request for a recommendation that the Bureau of Prisons place him in a halfway house for the final 12 months of his sentence.  Martin:  I want to appeal.  The Eleventh Circuit:  No.  A non-binding recommendation is not a “final decision” and, thus, is not reviewable on appeal.  Six other circuits agree.

Any word usage obsessive, maybe Bryan Garner or one of David Foster Wallace’s beloved SNOOT’s, will sigh upon reading United States v. Rehaif, in which the Eleventh Circuit offers a curious, and indefensible, riff on the adverb “knowingly.”  The panel’s grammatical foible harms not only Rehaif, who was convicted of possession of a firearm by an undocumented person, but also countless defendants convicted of other federal crimes that rise and fall upon what a defendant “knowingly” does.  Under 18 U.S.C. § 924(a), “[w]hoever knowingly violates subsection (g)” may be imprisoned for up to ten years.  And 18 U.S.C. § 922(g)(5) forbids an “alien [who is] illegally or unlawfully in the United States” from possessing a firearm.  Rehaif lived lawfully in the United States on a student visa until his Florida college dismissed him from school.  Two months later, immigration officials quietly terminated Rehaif’s lawful status.  Rehaif stayed in Florida and lived a very American life:  he lived by the beach, he rented a firearm and practiced at a shooting range, and he misbehaved at a hotel until the manager called the police.  An FBI agent found ammunition in Rehaif’s hotel room.  As we once asked of President Nixon, what did Rehaif know and when did he know it?  At trial, Rehaif asked the district court to require the government to prove both that he knowingly possessed a firearm and that he knew of his prohibited status—that he was illegally in the United States.  The panel demurred.  It held that the adverb “knowingly” modifies only the possession of the firearm, but no more.  The opinion relied upon precedent in many circuits holding that the government need not prove that a defendant knew of his prohibited status as a felon, an unlawful alien, and more.  Justice Neil Gorsuch makes a surprise appearance here and champions Rehaif’s losing cause.  In a concurrence filed during his days on the Tenth Circuit, the rookie justice channeled Justice Scalia and offered this marvelous, and accurate, riff: “[Prior precedent] reads the word ‘knowingly’ as leapfrogging over the very first § 922(g) element and touching down only on the second.  This interpretation defies linguistic sense—and not a little grammatical gravity.”  Fingers crossed on a petition for writ of certiorari.

Capture Tasha Art 10132017

May a federal agent acquire a search warrant for electronic information that sweeps far beyond the borders of his criminal investigation?  No.  Even for our beloved Eleventh Circuit, this was beyond the pale.  In United States v. Blake, the panel put the government on notice that such warrants are the modern-day equivalent of general warrants, which the colonists abhorred and the founding fathers outlawed in the Fourth Amendment. Blake was convicted at trial of pimping under-aged girls using on-line, Backpage advertisements.  He moved to suppress electronic evidence obtained through several warrants: a warrant for an Apple iPad at his home; a warrant for email accounts linked to the Backpage postings; and warrants for Facebook data.  The warrants to Facebook requested virtually every kind of data that could be found in a social media account and did not limit the requests to the time period of the crimes.  This was an unlawful, general warrant, wrote Chief Judge Ed Carnes, but the claim fell under the Leon good faith exception.  The result did little for Blake, but it will help the rest of us.  Overzealous investigators beware: Just because evidence is digital, you cannot have it all.  Meanwhile, the iPad, where Blake’s passcode blocked the agents’ access, was a stickier wicket.  The government reached into its bag of tricks and pulled out a warrant under the All Writs Act, 28 U.S.C. § 1651(a), a warrant which commanded Apple to bypass Blake’s passcode . The All Writs Act empowers federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to usages and principles of law.”  Was the warrant directing Apple “necessary or appropriate”?  Yes, says the panel.  The agents could not search the iPad without the code; the order was not covered by another statute; the order not inconsistent with the Congressional intent, and the order did not burden Apple (which was not too far removed from the criminal case because the iPad interacted with Apple’s services long after Blake bought it).  The lesson here: a passcode may protect your data from a pickpocket, but not from a long prison sentence.  A silver lining: the panel held that Blake had Fourth Amendment standing in his password-locked iPad, a device which he owned, used, and stored inside his home.  (This result was not inevitable, given the sinister third-party doctrine—pronounced in Smith v. Maryland—which insists that citizens do not have a reasonable expectation of privacy in records voluntarily shared with and maintained by a phone company or other utility.)

The opinion in United States v. Mathurin overflows with so many issues, our literary sip here will hardly do the case justice.  Alas, the panel and Judge Julie Carnes did Mathurin no justice either.  At the age of 17, Mathurin was arrested for robbery and carjacking.  He confessed to a string of robberies.  After the parties’ long, failed effort to negotiate a plea, the government convicted Mathurin at trial of several robberies and § 924(c) offenses.  The court sentenced Mathurin to serve 41 years in prison.  The Eleventh Circuit, five years ago, vacated the conviction based on a speedy trial violation.  (This superficially happy moment turned out to be Mathurin’s undoing—be careful what you wish for, eh?)  On remand, the district judge dismissed the indictment without prejudice and recused herself.  The government then re-indicted the case—after the period on the statute of limitations expires—and expanded the charges to include more than a dozen robberies and a dozen § 924(c) offenses.  After the jury convicted Mathurin, the new judge imposes a sentence of more than 56 years imprisonment, a 15-year increase over the earlier, vacated sentence.  Mathurin appealed anew.  Following a dismissal without prejudice, may a prosecutor wait until after the limitations period lapses to file a new indictment?  Yes, so long as she does so within six months of the dismissal.  Following a defendant’s successful appeal and remand, may the court impose a substantially (15 years!) higher sentence, or is the sentence vindictive and, thus, forbidden?  No, there is no presumption of vindictiveness where a new judge has stepped into the case and offers reasons for the sweeping increase in punishment.  Does the rule in Graham v. Florida, which bars life-without-parole sentences for juveniles (like Mathurin) convicted of non-capital offenses (like Mathurin’s), apply equally to a sentence of 56 years imprisonment?  Maybe, but not in this case, because the actuarial tables say that Mathurin, whose life expectancy is 77 years, may be released by the B.O.P. as early as 67 years old—this is not a life sentence.

Is sentencing factor manipulation is a thing? Or not? Yes, says the Eleventh Circuit in United States v. Osmakac: “Although this Court has recognized sentencing factor manipulation as a potential means for a sentence reduction, we have never applied it.” And even after Osmakac, it still hasn’t.  Like infinity and black holes, we know sentencing factor manipulation exists, we’ve just never seen it.  And, one wonders, will we ever?  Osmakac, a United States citizen, tried (and failed) to wage war against the United States in Afghanistan and Syria, then returned home to plan an attack within the United States.  After Osmakac proposed to government informants that he acquire WMD’s, those agents urged him to accept machineguns and explosives; these weapons later ratcheted up Osmakac’s sentence following his federal conviction.  Because the panel found no “extraordinary misconduct” during the sting operation, it rejected the sentencing factor manipulation claim.  (Practice tip: this claim depends upon the government improperly gerrymandering a court’s sentencing options, while a “sentencing entrapment” claim instead looks to a defendant’s predispositions.)  And, finally, an eerie echo of the Guantánamo cases: When the government conducts terrorism-related surveillance and searches with a FISA warrant, must it later provide that evidence to the defendant as he challenges the legality of the warrant? No, so long as the Attorney General (eek!) certifies that “disclosure or an adversary hearing would harm the national security of the United States.”  Instead, the defendant must simply trust the FISA court (and the district court) to assess the legality of the warrant without allowing him to participate at all.  He is left to fight with both hands tied (handcuffed?) behind his back.  One might ask this: if the evidence is so sensitive that it cannot see the light of day, maybe it is the government, not a defendant, who ought to bear the cost of that secrecy.  The government has the power to decline prosecution, and ought to follow that path if its classified intelligence is so precious.

A math story problem:  A postal carrier sets a package inside her truck.  A man brushes past her, steals the package, and runs off.  Question: How many victims do we count in the man’s crime?  A first grader (and a reader) might answer with this: Two.  But the district court in United States v. Tejas offered a surprising answer—ten victims—and enhanced the range by two offense levels.  Why?  The “special rule” in U.S.S.G. § 2B1.1, comment. n. 4(C)(ii), requires that when an offense involves a theft from a mail truck, the crime “shall be considered to have involved at least 10 victims.”  Try again, said the Eleventh Circuit.  We must look first not to the special rule, but to the number-of-victims enhancement in § 2B1.1(b)(2).  The facts of this case leave only one proper calculation.  Using our fingers, we can count no more than two (the addressee on the box, and the mail carrier).

Contributors: Suzanne Hashimi, Colin Garrett, Brian Mendelsohn, Allison Dawson, Natasha Silas, Vionnette Reyes Johnson, Wes Bryant, and Victoria Calvert.

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