The Eleventh Circuit Board

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The Blues are back. After a one-year hiatus, the Federal Defender Program returns with our weekly(-ish) summaries of the Eleventh Circuit’s latest published opinions. And we’re off:

We begin with a jolt. Is the compassionate release statute all but dead? We know that a judge may grant relief only when she identifies an “extraordinary and compelling reason.” But what does that mean? And who gets to define it? Eight (!) circuit courts say that a judge may look outside the narrow list penned by the Sentencing Commission in U.S.S.G. § 1B1.13. A fact is “extraordinary and compelling” if a court says that it is. Our Northern District of Georgia judges, for example, have granted 76 pandemic-era motions based on health risks, age, COVID, rehabilitation, and recent changes in the law (say, the § 924(c) stacking penalties). But in United States v. Bryant, a panel (well, a two-judge majority) slammed shut the courthouse door on nearly all CR motions. The majority held that § 1B1.13 is the applicable (and only, perhaps?) definition of “extraordinary and compelling.” A court may grant relief only in those rare cases that fit within one of these boxes: (A) terminal illness, (B) 65 years old/75 percent through a sentence/debilitated by disease; and (C) family circumstances (e.g., orphaned kids). What’s worse, the majority says that a court must not rely upon (D), the “other reasons” provision, because that applies only to BOP-initiated, not defendant-initiated, motions. The Bryant rule, in defiance of eight circuits and Congress’s intent to “increase the use and transparency of compassionate release,” means that judges today have fewer tools to grant relief than they had before the First Step Act. Silver lining: Judge Martin did Judge Martin things by writing a sharp dissent. Silver lining, Part 2: Bryant’s lawyers will (probably) file a petition for rehearing en banc, so stay tuned.

In United States v. Foster, a fellow brings a pistol to a fake stash-house robbery, where he plans to steal cocaine at gunpoint. Agents arrest him and a jury convicts him of a Hobbs Act conspiracy, drug conspiracy and attempt offenses, and a § 924(c) firearm count based on all three predicates. Foster files a § 2255 motion: My § 924(c) conviction is based on Hobbs Act conspiracy, so after United States v. Davis, it’s unlawful. Eleventh Circuit: True, but it’s also based on the drug trafficking crimes, and they are unaffected by Davis. Under the Brecht harmless-error rule, you must prove that in the the § 924(c) count the jury relied only upon the Hobbs Act conspiracy and not the drug trafficking crimes, but here we know the jury used all three. How do we know? The jury convicted you of all three substantive crimes and they are inextricably intertwined anyway—you possessed the firearm with the goal of robbing the stash house to steal the drugs. Silver lining: When the government fails to raise procedural default in the district court, it’s too late—that defense is waived on appeal and the panel won’t save the government from itself.

The Eleventh Circuit, sitting en banc in United States v. Brown, reversed the conviction of a former United States congresswoman because the district court improperly excused a juror during deliberations. The headline: A district court cannot excuse a juror during deliberations when the juror tells other jurors that the Holy Spirit told him the defendant was not guilty. While that is a flashy headline, the real significance of this case is this: It is a valuable weapon to prevent the excusal of holdout jurors. The opinion emphasizes that the district court must apply “a tough legal standard” for dismissal of jurors during deliberations and a juror can only be excused when “no substantial possibility exists that the juror is basing her decision on the sufficiency of the evidence.” This is akin to a beyond-a-reasonable-doubt standard. Practice tip: If our holdout juror says her decision is based on the evidence and she is deliberating, the juror stays.

In United States v. Riley, now-Senior Judge Ed Carnes offered a chilling endorsement of a soaring upward variance from a 12-18-month guideline range to a 70-month sentence on a felon-in-possession conviction. He used the client’s prior arrests against him, even those that were dismissed, and offered cherry-picked paraphrases of the Sentencing Commission’s recidivism studies, concluding that crimes involving firearms warrant a stronger sentence to protect the public. Judge Carnes also implied that criminal history is more important than any other sentencing factor, pointing out that five of the § 3553(a) factors are related to criminal history. He emphasized that Riley’s sentence was reasonable given that it was 50 months below the statutory maximum of 120 months. Practice tip: To avoid this outcome in your own cases, be prepared to put into context your client’s prior arrests, including those charges that were dismissed and did not result in criminal history points.

Do you like word play? How about opinions that strain to recast seemingly plain phrases in a way that makes harsh criminal sentences even harsher? If you answered yes to either question, then United States v. Dominguez is the case for you. The panel defined “sexual activity” in 18 U.S.C. § 2422(b) so that it could determine whether the five-level pattern enhancement in U.S.S.G § 2G2.2(b)(5) applied. Dominguez pled guilty to distribution and possession of child pornography. At sentencing, the district court applied the pattern enhancement based on a series of sexually-explicit Instagram direct messages Dominguez sent to a minor. Dominguez objected because he contended that “sexual activity” required actual or attempted interpersonal physical contact. Since he never had physical contact with the minor (or even attempted it), “sexual activity” hadn’t taken place. The government said that “sexual activity” doesn’t require actual or attempted physical contact. The Fourth and Seven Circuits had split on this question (with the Fourth finding that no interpersonal contact was required, and the Seventh finding that such contact was required). The Eleventh Circuit, in Dominguez, sided with the Fourth Circuit: “Sexual activity” does not mean sexual physical activity.

Section 404 of the First Step Act of 2018 has been a great gift. Our district judges have since reduced the sentences of several dozen people imprisoned under the 1990’s-era crack-cocaine penalty provisions. Most of the Section 404 legal questions have been resolved by now, but this one remained. In United States v. Edwards, the panel held that a defendant may file a motion for relief under Section 404 alone (where a court may “impose a reduced sentence”), and need not style it after the generic reduction statute: 18 U.S.C. § 3582(c)(1)(B) (where a court may “modify an imposed term of imprisonment”). “The First Step Act is its own procedural vehicle.” So what, you ask? Well, here’s the catch. This premise allowed the panel to then hold that when a judge, in granting Section 404 relief, reduces the prison term (life down to 262 months, here), she may also add supervised release (eight years from none at all). Why? Because the overall length of the sentence (which includes both prison and supervision) is “reduced.” The right hand may give and the left hand may take away, so long as the punishment’s timeline ends sooner than it would have. With that said, this outcome seems reasonable, does it not? The district court chose not to impose supervision the first time only because it sentenced Edwards to life in prison, and now that life sentence is gone.

Authored by Allison Dawson, Brian Mendelsohn, Byron Conway, and Matthew Dodge.

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