The 11th Circuit Board

Good day, defenders of the righteous and oppressed, from your new 11CB correspondent. You will find here a collection of case summaries from the ever-shifting legal landscape, as defined by our mercurial overlords, the Eleventh Circuit Court of Appeals. These summaries are not an exhaustive recounting of the intellectual nuances of our beloved jurists, but rather they are designed to give you a taste—a jurisprudential amuse-bouche, if you will—of the current state of the law. As always, if you click on the case name, you will find the slip opinion on the court’s website. Enjoy.

United States v. Sheffield, 939 F.3d 1274 (11th Cir. 2019)

The Eleventh vacated the district court’s restitution order. Where an appropriate restitution amount is definite and easy to calculate, the government cannot use a reasonable estimate to approximate loss. The defendant here undertook a tax credit fraud, where each illicit tax credit submission triggered a refund of $1,000. At the defendant’s sentencing hearing the government submitted a spreadsheet containing information with duplicative entries, resulting in an inaccurate restitution amount. The Eleventh remanded with instructions for the district court to recalculate restitution by doing this “simple mathematical exercise” correctly.

United States v. Perez, 943 F.3d 1329 (11th Cir. 2019)

The Eleventh held that the district court wrongly applied the threat-of-death guideline enhancement, U.S.S.G. § 2B3.1(b)(2)(F), in a bank robbery case. The defendant used a note advising the teller to “put $5,000 in an envelope . . . and no one would get hurt.” The court found that despite this implicit threat, nothing about the defendant’s actions generated the additional level of fear associated with a threat of death. The defendant did not wear a disguise; his clothes did not suggest he was armed; he made no threatening gestures; he told the teller he was only committing the robbery because he “had kids to feed” (thus softening the impact of the demand); and the teller chose not to comply with the defendant’s demand for money four separate times. Under the totality of the circumstances, the conduct of the defendant did not rise to the level of a threat of death.

United States v. Bankston, 945 F.3d 1316 (11th Cir. 2019)

The Eleventh found the district court incorrectly applied a two-level sentencing enhancement, U.S.S.G. § 3B1.5, for the use of body armor during a drug-trafficking offense. The enhancement requires a defendant (1) to use body armor to protect himself, if necessary, from gunfire or (2) to use the body armor as a means of bartering. Here the defendant simply sold body armor to a customer for cash during a drug transaction. In strictly applying the enhancement provision’s text, the Eleventh concluded that selling body armor is not tantamount to “bartering.” The enhancement did not apply.

United States v. Hill, 946 F.3d 1239 (11th Cir. 2020)

The Eleventh declared that the exclusionary rule does not apply at supervised release revocation hearing. The defendant was arrested during a traffic stop for possession of marijuana. At the revocation hearing, he filed a motion to suppress the search of his vehicle, a search which led to the discovery of the marijuana. The Eleventh concluded that the exclusionary rule does not apply to supervised release revocation hearings, per Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 269 (1998), which held that the exclusionary rule did not apply to state parole revocation hearings.

United States v. Brown, 947 F.3d 655 (11th Cir. 2020)

The Eleventh upheld the district court’s decision to excuse a juror for cause during deliberations, over Brown’s objection, because the juror stated he had prayed to the Holy Spirit for guidance and that God told him to find the defendant not guilty. The Eleventh reasoned that the excusal was justified because the juror was not basing his decision to acquit on the evidence presented at trial. The juror’s First Amendment rights were not violated, nor were the defendant’s Sixth Amendment rights. The juror was excused simply because he could not render a verdict based on the evidence. Judge William Pryor penned a blistering dissent, arguing that the majority’s opinion was an attack on evangelical Christians and African-Americans, two groups who often look to God (and say so in those terms) when deciding questions of paramount importance.

United States v. Oliver, 946 F. 3d 1276 (11th Cir. 2020)

The Eleventh held that a Georgia terroristic threats conviction did not qualify as a violent felony under the Armed Career Criminal Act. Why not? The statute is indivisible. And since it is indivisible and covers acts which do not involve the use of force against another person, the crime is categorically not an ACCA violent felony.

United States v. Mancilla-Ibarra, 947 F.3d 1343 (11th Cir. 2020)

The Eleventh upheld the district court’s denial of safety-valve relief under the “tell-all” requirement in U.S.S.G. § 2D1.1(b)(17). Mancilla failed to prove that he was truthful about the number of drug deliveries he made. The Eleventh also held that Mancilla’s warrantless arrest was lawful because the source of the probable cause, an informant, was sufficiently reliable enough. The informant personally witnessed Mancilla’s criminal activity, interacted with his supplier, turned over drugs he had previously purchased from Mancilla, and had completed a sting operation involving a separate drug purchaser.

United States v. Bane, 948 F.3d 1290 (11th Cir. 2020)

The Eleventh provided a measured opinion on a convoluted issue of whether co-defendants could use a writ of error coram nobis to challenge a forfeiture judgment. A what, you ask? A writ of error coram nobis is an order, arriving after a defendant in no longer in custody, in which the court corrects its original judgment upon discovery of a fundamental error that did not appear in the records of the original proceedings and would have prevented the judgment from being pronounced at all. Here the court originally imposed a forfeiture order against the Banes, a father and son, and made them jointly and severally liable for the total proceeds of their health care fraud scheme. The pair did not appeal this forfeiture order. However, in the wake of Honeycutt v. United States, 137 S.Ct. 1626 (2017), which held that a forfeiture order must not be based on joint-and-several liability, the two filed a motion for writ of error coram nobis. But the Eleventh held that the Banes pair procedurally defaulted on the claim and offered a dense discussion on whether a Honeycutt error is jurisdictional (it’s not) and whether the novelty of a claim may constitute cause for excusing the procedural default (this claim was not novel). What you, the intrepid defense attorney, should draw from Bane is the following: If a potential issue of an appeal concerns a matter of statutory interpretation, you must object and file an appeal. If not, you risk procedurally defaulting in the future if the Supreme Court interprets the statute in your client’s favor.

Martin v. United States, 949 F.3d 662 (11th Cir. 2020)

The Eleventh held the defense counsel was not ineffective when advising a client that his plea to access-device fraud and aggravated identity theft would certainly result in the client’s deportation to Jamaica. Because the immigration statute did make explicit that a conviction to these crimes must result in a deportation, the attorney only needed to make the client aware he could be deported. The client learned in both the plea agreement and the plea colloquy that he may be removed from the United States as a result of his conviction. That was enough. Counsel was not ineffective.