The 11th Circuit Board

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Our appeals court published only a handful of criminal opinions in February.  But the lull may soon pass.  The court had an extraordinarily busy oral argument calendar this week.  And a new member has joined the ranks: Judge Elizabeth “Lisa” Branch.  The U.S. Senate confirmed Judge Branch (pictured below) last week, and her name plate already graces the door of her chambers at the Tuttle Building.  The pace of opinions may soon pick up.  Onward to February’s cases.

True or false? At a guilty plea hearing, when the district court fails to describe  the nature of the fraud charges, fails to outline the elements of the offenses, and fails to ask the defendant if he understands those elements, that plea colloquy is defective. False, says the Eleventh Circuit (under plain error review, anyway). The panel in United States v. Presendieu reached the surprising result for a couple reasons: the filter of plain error is never a defendant’s friend, and besides, the defendant had signed a detailed factual proffer of the uncomplicated crimes, so the superficial violation of Rule 11 hardly mattered.  Yet the Presendieu opinion offers us shiny baubles on a pair of sentencing questions.  First, the district court’s loss amount was far too high for one defendant, Jean.  Although Jean knew generally that she was part of a larger scheme, that fact alone was not enough to tag her with another defendant’s loss, especially where Jean did not know that actor existed and knew nothing at all of her crimes.  A mere conspiracy alone does not establish U.S.S.G. 1B1.3’s necessary proof of “jointly undertaken criminal activity.”  Second, the district screwed up in refusing Jean’s overture for a minor-role reduction.  The court wrongly considered only one of the collection of factors listed in U.S.S.G. § 3B1.2, comment. n.3.  The opinion offers a useful, DIY manual on minor role.

Does the Florida crime of sexual battery with a deadly weapon fit within the Armed Career Criminal Act’s elements clause?  Yes, at least for now.  In United States v. DeShazior, the panel follows the ACCA path armed with its familiar tool: the categorical approach.  The court presumes that sexual battery alone does not require the degree of “violent force” required by the Supreme Court, but then asks: Does the use of a deadly weapon during a sexual battery necessarily turn the crime into an ACCA violent felony?  Yes. Although counsel offered marvelous arguments that an actor might commit the crime not through the direct use of force, but only through the indirect use of force (e.g., by sloshing bleach in a victim’s face, or commanding a dog to “sic” a victim), the panel was unmoved. One practice tip: the panel held, too, that Florida’s aggravated assault statue continues to be an ACCA violent felony.  But the binding precedent that tells us so, Turner v. Warden, is ripe for challenge through an en banc petition.  Judge Jill Pryor, for one, has invited such a petition.

In Cintron v. Attorney General, Judge Jill Pryor, a faithful scholar of the categorical approach, writes for the panel and concludes that FL § 893.135(1)(c )1, a self-described “drug trafficking” statute, is not an aggravated felony because it is both overbroad and indivisible.  The statute provides that “[a]ny person who knowingly sells, purchases, manufactures, delivers or brings into the state, or who is knowingly in actual or constrictive possession of” certain drugs is guilty of a felony known as “trafficking in illegal drugs.”  Federal law, 8 U.S.C. § 1101(a)(43), includes “drug trafficking crimes” in its definition of aggravated felony.  But under federal law, a drug-trafficking crime does not include simple possession of drugs.  Florida’s version does.   The panel recites the familiar tenets that a court can only examine Shepard documents and use the modified categorical approach when a statute is divisible (i.e., it creates distinct crimes with different elements).  The court first looks to the statute’s text (e.g., does it provide tiered punishment for each form of the crime?) to determine if a statute is divisible.  If the text is not clear, we study state case law, the indictment, and jury instructions. If the answer is not clear even then, the ambiguity is resolved in favor of indivisibility and the categorical approach.  But Florida case law tells us this drug statute is indivisible.  And because the statute includes simple possession, it is broader than a federal “drug trafficking” crime.  This is not an aggravated felony, in spite of the state crime’s misleading title.  This story proves that we should never assume that a crime qualifies as a predicate offense until we research state law. When is a drug trafficking crime not a drug trafficking crime? Perhaps more often than we realize!

Contributors: Rebecca Shepard, Kendal Silas, and Nicole Kaplan.

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