The 11th Circuit Board

Posted by

If you asked Jabba the Hutt whether strangulation is violent, what would he say?  Or Radio Raheem in Do the Right Thing?  Or Eric Garner?  Or the Eleventh Circuit?  A person commits the Florida crime of domestic battery by strangulation when he “impedes the normal breathing or circulation of blood . . . so as to create a risk of or cause great bodily harm by applying pressure on the throat or neck . . . or by blocking the nose or mouth of the other person.”  A “crime of violence” under the sentencing guidelines’ elements clause involves “the use, attempted use, or threatened use of physical force” against another.  The Supreme Court held in Curtis Johnson v. United States that “physical force” is more than an intentional touching; it requires “violent force—that is, force capable of causing physical pain or injury.”  Does strangulation involve violent force?  Yes, says the Eleventh Circuit in United States v. Dixon.  The acts of “applying pressure to the throat” and “blocking the nose or mouth” alone require no more than intentional touching, but the Florida statute demands more.  An offender must do more than simply lay hands on a victim; he must knowingly and intentionally impede breathing or blood circulation—conduct that is necessarily capable of causing physical injury.  Although Dixon offered a handful of creative, non-violent hypotheticals (what if one removes a sleep apnea mask?), the panel swept them away as too implausible and “not rooted in [Florida] caselaw.”


A nurse at a Veterans Affairs hospital alters computer records to hide his own negligence in the death of an elderly patient.  After the nurse pleads guilty to a pair of federal crimes, he passes 18 of 19 court-ordered drug tests.  At sentencing, the court refuses to reduce the nurse’s guidelines range for acceptance of responsibility—it mistakenly believed that with a single failed drug test, U.S.S.G. § 3E1.1 required the court to forfeit the nurse’s acceptance reduction.  In United States v. Martinez, the Eleventh Circuit, led by Judge Hull, vacated the sentence: “[A]though a district court has broad discretion to grant or deny a reduction under § 3E1.1, a court errs if it believes that it does not have the authority to grant such a downward reduction.”  The panel remanded to the district court for a fresh look, and hinted that the court is free to block the reduction all over again, so long as it knows it does not have to do so.  In its remand instructions, the panel seems to channel Jeff Goldblum’s character in Jurassic Park, who quipped: “Just because we can do it, it does not mean we should.”  I worry for Mr. Martinez on remand.

How does the Alabama Supreme Court define “forcible compulsion” under its sexual abuse statute? (Insert Roy Moore joke here.)  Long before Moore was chief justice, the court declared this rule: any sexual act committed by an authority figure is sexual abuse because it necessarily includes at minimum a threat of some disciplinary action (but not necessarily of physical violence).  Surely Moore would have dissented had he the chance.  But in United States v. Davis, the Eleventh Circuit grudgingly held that the Alabama crime falls outside the ACCA’s elements clause.  Chief Judge Ed Carnes, the resident lyricist of our beloved appeals court, composed this overture to the opinion:

This is an ACCA ‘violent felony’ issue case.  So here we go down the rabbit hole again to a realm where we must close our eyes as judges to what we know as men and women.  It is a pretend place in which a crime that the defendant committed violently is transformed into a non-violent one because other defendants at other times may have been convicted, or future defendants could be convicted, of violating the same statute without violence.  Curiouser and curiouser it has all become, as the holding we must enter in this case shows.  Still we are required to follow the rabbit.

With whom does he lay blame for the rabbit hole?  Who are the rabbits?  Defendants and their lawyers?  We did not write the ACCA—Congress did.  We do not interpret the ACCA—judges do.  We simply ask that federal judges look closely at the law before imposing breathtaking sentences of fifteen years or more.  And even with all our best effort to seek ACCA justice, we lose most of the time anyway.  So if Judge Carnes views the ACCA jurisprudence with such distaste, he might do better to paraphrase Antonin Scalia rather than Lewis Carroll.  In Derby v. United States, the former justice famously proclaimed: “Since our ACCA cases are incomprehensible to judges, the statute obviously does not give ‘person[s] of ordinary intelligence fair notice’ of its reach. . . .  I would grant certiorari, declare ACCA’s residual provision to be unconstitutionally vague, and ring down the curtain on the ACCA farce playing in federal courts throughout the Nation.”

And speaking of curious ACCA results.  This head-scratcher comes not from us, but from our appeals court.  Let’s say a convicted felon sells a rifle to an undercover federal agent.  If the fellow has at least three prior convictions for serious-drug offenses, the Armed Career Criminal Act requires a steep sentence enhancement.  In United States v. Longoria, the defendant earned his trio of potential ACCA predicates in a single federal case.  In that long-ago case, he pled guilty to a drug conspiracy count (dated December 2007 to December 10, 2008), and two drug distribution counts for sales that occurred during that very conspiracy (on November 24, 2008, and December 3, 2008).  But wait, you ask, doesn’t the ACCA tally only those crimes that occurred “on occasions different from one another”?  Surely the drug sales folded into the wider drug conspiracy are not “occasions different,” right?  Alas, no.  The Eleventh Circuit hardly broke a sweat in rejecting this view.  Because the conspiracy stretched one week past the latest drug sale, it was, like each drug sale, a separate occasion.  The practice tip here is one of prevention, not cure:  Don’t allow a client to plead guilty to three prospective ACCA predicates in a single case.  Not.  Ever.

Contributors:  Stephen P. Johnson, Colin Garrett, and Matthew Dodge.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s