The 11th Circuit Board

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The time has come to tie a bow on this year’s business in our beloved appeals court.  The court has recently issued opinions in three criminal cases, but first, we begin with some news headlines:

Judge Elizabeth Branch of the Georgia Court of Appeals is one step closer to joining the Eleventh Circuit bench.  According to the AJC, Judge Branch “breezed through” last week’s confirmation hearing in the U.S. Senate.


President Trump has added Justice Britt Grant of the Georgia Supreme Court to his list of potential nominees to the United States Supreme Court.  Justice Grant has been a judge on our state’s highest court for less than one year.  You will find a nice biography in this post by the National Review.  You will find more news on Justice Grant’s Ballotpedia page.

Judge William Pryor recently wrote an Op-Ed piece in the New York Times: “Conservatives Should Oppose Expanding the Federal Courts.”  As we think about our own work before the Eleventh Circuit, one observation stood out.  Judge Pryor believes the court should conduct fewer, rather than more, oral arguments.  The rate of oral arguments in our circuit has fallen to seven percent (from forty percent several decades ago), but it may drop even more, it seems.

On to the recent opinions.  The good guys won all three.

A defendant pleads guilty with an appeal (and collateral attack) waiver.  He later files a § 2255 motion to vacate the conviction and sentence.  The government does not raise the waiver as defense to the § 2255 motion.  District court:  The § 2255 motion must be dismissed based on the waiver.  Says the Eleventh Circuit in Burgess v. United States:  Not so fast.  A district court must not sua sponte enforce an appeal (or collateral attack) waiver where the government turned a blind eye to it.

A defendant’s prior state conviction for marijuana possession ended in this disposition: “Adjudication withheld, 198 days time-served.”  Quiz: Does this conviction count for zero, one, or two points under § 4A1.1 of the sentencing guidelines?  District court:  Two points, of course, because 198 days is greater than 60 days, but less than 13 months.  The Eleventh Circuit in United States v. Baptiste:  Nope.  When a state court withholds adjudication, such a case may only and always counts as one point, no matter how much time the defendant spend in jail.

A defendant files a motion to terminate supervised release.  District court:  Denied, with no explanation at all.  The Eleventh Circuit in United States v. Johnson:  Try again.  Under 18 U.S.C. § 3583(e), a district court must compare the defendant’s conduct on supervised release against most (but not all) of the factors listed in 18 U.S.C. § 3553(a).  The record must show that the court carried out this obligation.  If not, an order denying a motion to termination is unlawful.

Happy Holidays!

Contributors:  Brian Mendelsohn, Allison Dawson, and Matthew Dodge.

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