The Eleventh Circuit Board

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We start with hopeful news about the Armed Career Criminal Act.

The Supreme Court continues to prescribe us antidotes to that poisonous (and racist) law. In recent years, we have seen Johnson I, Descamps, Johnson II, Welch, and Mathis. And now we have Borden v. United States. Yesterday the Court held that the ACCA definition of violent felony excludes state crimes with a mens rea of recklessness, a mental state less culpable than purpose or knowledge. What does this mean for us today? A Georgia conviction for aggravated assault (which includes recklessness) is no longer an ACCA violent felony. The en banc Eleventh Circuit will soon make it official in United States v. Moss, No. 17-10473, once that court lifts its stay and accounts for Borden.

One note: A Georgia aggravated assault (with a deadly weapon, anyway) remains a crime of violence under the sentencing guidelines because § 4B1.2(a)(2), unlike the ACCA, includes aggravated assault on its list of enumerated crimes. United States v. Morales-Alonso (11th Cir. 2018).

One more note: Keep an eye out for another ACCA opinion next term, when the Court will decide Wooden v. United States (and tell us what “committed on occasions different from one another” means).

That’s not all the good news. We may soon strike the entire Georgia robbery statute (including robbery by force, by intimidation, by any means at all) off the roster of ACCA violent felonies. The Eleventh Circuit will decide the question in United States v. Sharp, No. 20-12574. The court will conduct an oral argument this fall with the FDP’s Stephen P. Johnson, who won the issue in the district court. There Judge May held that the Georgia robbery statute is indivisible and, because it includes robbery by sudden snatching (a non-violent act), every conviction under the statute is categorically not a violent felony. The government appealed, so we’ll see what happens. Judge May is in good company, though. Judge Cohen (with an assist from John Garland) agrees with her. So does the Fourth Circuit, for that matter. And there’s more. A Georgia robbery is no longer a crime of violence under § 4B1.2(a)(2). Yes, robbery is on the list of enumerated crimes, but because the statute is indivisible, it is broader than the generic federal definition of robbery. So say the Fourth Circuit (again) and Judge Batten (care of the FDP’s Melissa McGrane). (Contact Matthew Dodge for details.) In the meantime, keep those objections coming.

On to the latest opinions from our local federal appeals court:

Two brothers ran a construction business that repaired public housing units in Miami-Dade County, work that was funded by the federal government. Under the the Davis-Bacon Act, a contractor must agree to pay mechanics and laborers the prevailing local wage, and must produce a weekly payroll document that lists all employees, hours, and pay rates. The brothers secretly hired subcontractors at a flat rate that ignored the required wage scale. But they sent the government false documents attesting that named employees were present at job sites (they weren’t) and worked certain hours (they didn’t). The jury convicted the brothers of a conspiracy to commit wire fraud. On appeal, the brothers claimed that there was insufficient evidence of a scheme to defraud because the county did not suffer a financial loss—everyone agreed the company did good work. The misrepresentations were not material, the brothers argued, because the county got what it paid for. In United States v. Estepa, the Eleventh Circuit disagreed. If the county had known about the brothers’ intent to pay subcontractors a flat rate below the wage scale, it would not have awarded the contracts in the first place. Therefore, the misrepresentations were material. 

In United States v. Taylor, the Eleventh Circuit reminded us that a district court has significant leeway in choosing conditions of supervised release. It held for the first time that electronic-search conditions, which are typically reserved for sex offenders, may be imposed on persons who are not “normal non-sex offenders, such as those who frequently recidivate, or habitually violate their conditions of supervised release, in a manner that poses a danger to others.” Taylor was convicted of possession of a firearm by a convicted felon. The court (our own Judge Ray) sentenced him to prison, but also imposed a broad supervised-release condition: The probation officer may search Taylor’s computers and digital devices if reasonable suspicion exists that (1) Taylor violated any condition of supervised release and (2) those devices might contain evidence of the violation. The Eleventh Circuit held that the expansive condition was proper here because the district court expressed concern that Taylor would continue to possess and purchase guns and drugs. Why? When the police found Taylor, he was passed out inside his truck, which was parked in the middle of the road. Plus this was Taylor’s seventh conviction for possessing a firearm as a convicted felon.

A post-conviction pop-quiz: Let’s say the Supreme Court pens a new constitutional rule like, for example, Davis, where it held that the § 924(c) residual clause is void for vagueness. And then let’s say a fellow files a § 2255 motion to vacate his § 924(c) conviction based on Davis. And let’s say the district court grants the motion, but refuses to conduct a fresh re-sentencing hearing on the surviving counts, and simply files an amended judgment without the § 924(c) sentence. The defendant wants to appeal the court’s failure to conduct a fresh hearing, so what must he do next: (A) simply file a notice of appeal or (B) seek a certificate of appealability for permission to appeal? In United States v. Cody, the Eleventh Circuit tells us: (B). The COA “is required to challenge the choice of remedy under section 2255.” The opinion seems narrow enough: This rule applies only to the choice of remedy (i.e., whether to conduct a fresh hearing), but not, says the panel, to “direct appeal matters,” such as certain procedural errors (misapplying the sentencing guidelines) and substantive mistakes (the sentence is too high). On those issues, a notice of appeal seems to be fine all by itself.

Contributors: Judy Fleming, Kendal Silas, and Matthew Dodge.

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