The Eleventh Circuit Board

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The Eleventh Circuit has again landed on the wrong side of a circuit split. In the First Step Act, Congress expanded the pool of people eligible for the safety valve, which allows a judge to dive below the mandatory minimum in a drug case. In the past, a person was eligible only if he had zero or one criminal history points under the sentencing guidelines. But now, the fresh version of 18 U.S.C. § 3553(f)(1) says a person is eligible so long as:

[T]he defendant does not have (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense; and (C) a prior 2-point violent offense.

Does “and” really mean “and”? Must the government prove all three disqualifiers? In United States v. Garcon, the panel answered: No and no. “And” is normally conjunctive, but in this case, says the court, it’s disjunctive. “And” means “or.” How do we know? If “and” is read conjunctively, it would render subsection (A) superfluous because if you had both a 3-point conviction and a 2-point conviction you would automatically have more than 4 criminal history points. So if you fit into any one of the subsections, you must be denied safety-valve treatment. The holding has provoked a circuit split with United States v. Lopez, 2021 WL 2024540 (9th Cir. May 21, 2021). One side note: Judge Branch, in her Garcon concurrence, and the Lopez panel both cited the very same pages of Scalia and Garner’s Reading Law, but read the same words to have opposite meanings.

In United States v. Jackson, a depressingly efficient seven-page opinion, the panel held that the district court’s application of the “in connection with” enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was not clearly erroneous. Mr. Jackson agreed to sell heroin and a gun to an informant. When the informant showed up, Mr. Jackson was able to supply the heroin, but not the gun. He promised he would get it soon. Five days later, the informant met Jackson again and purchased the firearm. The panel held that the gap in time (five days!), and the separate purchase prices of the heroin and gun, were enough to show that the application of the enhancement was not clearly erroneous.

Do jurors truly understand the unsavory dealings found in the lesser known nooks and crannies of the internet?  Places where someone might engage in role play about disturbing topics such as sex with a child? In United States v. Castaneda, the Eleventh Circuit said yes. At trial, Castaneda sought to introduce expert testimony on the general topic of “fantasy and role playing in online sexual communications.” In simplistic and unrealistic terms, the panel held that jurors do not need expert assistance to understand that some communications on the internet might be untruthful.  Without a specific connection to Castaneda’s own communications, exclusion of the expert testimony was not an abuse of discretion. 

Compassionate release is not dead yet. As we wait for the Bryant certiorari petition (see last week’s post), the panel in United States v. Cook has cheered us up, just a bit. Cook: My health risks (obesity), the pandemic, and my defunct career-offender enhancement all merit compassionate release. District court: Your motion is denied (in this two-paragraph order), but I won’t tell you why, and I won’t cite the 18 U.S.C. § 3553(a) factors at all, not even in passing. Eleventh Circuit: Try again. In every motion under 18 U.S.C. § 3582(c)(1)(A), a court “must explain its sentencing decisions adequately enough to allow for meaningful appellate review,” yet the court’s order here “includes nothing to suggest the court considered, balanced, or weighed any of [the § 3553(a) factors].” Vacated and remanded for a do-over.

Authored by Jeff Ertel, Colin Garrett, Caitlyn Wade, and Matthew Dodge.

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