The Eleventh Circuit Board

Three years ago, Judge Amy Totenberg imposed a sentence of probation by writing (and reciting in open court) a poem. It was a glorious moment. What if our Eleventh Circuit judges wrote opinions in the form of poems? (Looking at you, Judge Rosenbaum!) Until then, we’ll just have to do it ourselves. You’ll find our first Blue Notes poem at the end of this post.

We begin with a news break: What’s going on with the ACCA and the Georgia aggravated assault statute? We discussed this topic in detail last time, so check out that post for background. Meanwhile, we have more good news.

After the Supreme Court’s opinion in Borden, DOJ’s appellate division filed a notice of supplemental authority in Moss, the pending en banc Eleventh Circuit case on Georgia aggravated assault and the ACCA. In the letter, the DOJ concedes that “Palomino Garcia, . . . on which the panel opinion here relied, is consistent with Borden. Further consideration by the en banc Court is, therefore, unnecessary.” In short, the government has given up. It agrees that a Georgia conviction for aggravated assault with a deadly weapon is no longer an ACCA violent felony. The en banc Court hasn’t acted yet, but we can cite this letter as authority. Please re-read the panel opinion in Moss, though, and check your client’s Shepard documents. The Moss panel found that the simple assault statute (the foundation of any aggravated assault conviction) is divisible, so depending on the wording of your indictment, you may still have problems.

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

The Eleventh Circuit reminds us that even when both the government and the defendant object to an enhancement, a district court may apply the enhancement anyway. In United States v. Montenegro, the defendant was convicted of conspiracy to PWID cocaine and PWID cocaine. After Montenegro sold the cocaine to an undercover officer, the UC arrested him and searched his residence, a small trailer. A firearm was found in another part of the residence. Both parties objected to the two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1) because there was no nexus between the firearm and the drug crime. The district court applied the enhancement anyway. The Eleventh Circuit affirmed. It held that the government’s objection was not dispositive because it is the district court—not the government—that must measure the evidence and apply the guidelines. And a district court has the authority to disagree with both parties, if it chooses.

What happens when a trial court gives a jury instruction (with the government’s blessing) that includes the wrong definition of a crime? The Eleventh Circuit noted, in United States v. Anderson, that it’s not “defense counsel’s job to alert the prosecutor that the latter might perhaps want to read more carefully the government’s own exhibits.” Even so, the district court did not violate Rule 30 here when it corrected an erroneous instruction after (yes, after) defense counsel’s closing argument, an argument that relied on the original instruction. The pattern mail-fraud instruction says a person may commit that crime via “United States mail” or by “private or commercial interstate carrier.” The evidence at Anderson’s trial showed that he used UPS, not the U.S. Postal Service. Yet the the government, Anderson, and the district court mistakenly agreed upon a jury instruction that cited only the U.S. Postal Service and omitted the means of “private commercial interstate carrier.” Then defense counsel argued in closing that Anderson had not committed mail fraud because he had used UPS, not the U.S. Postal Service. Sounds like a winner, particularly because Rule 30(b) requires a district court to inform counsel whether it will give a requested instruction before counsel’s closing argument. Undaunted, the district court leapt to action (again, after closing arguments) and gave the jury a supplemental instruction that suddenly included “private or commercial interstate carrier.” The jury convicted Anderson and the Eleventh Circuit affirmed: “Rule 30 does not empower counsel, through the mechanics of the closing argument, either to dictate the law by which a verdict is reached or to create a mistrial by erroneously stating the legal principles applicable to a given situation.”

Are the sentencing guidelines advisory? Of course, says Judge Grant in United States v. Henry. Not so fast, says Judge Pryor (no, not that one, Chief Judge William Pryor!) in dissent. This case is ostensibly about whether Henry should have received credit under U.S.S.G. § 5G1.3(b) for time served on a related state sentence. The district court didn’t give credit and the panel affirmed because the guidelines (all of them) are advisory. Judge Pryor is setting up a showdown on whether there is a difference between the guidelines that set the range (e.g., Chapters 2-4) and those that govern imposition of the sentence (e.g., Chapter 5). This feels like dangerous ground—and is inconsistent with footnote 11 in Gall v. United States—but if your judge waffles on giving credit under § 5G1.3(b), you might argue that the provision is mandatory, just to raise a novel issue on appeal that might get you oral argument or, at the very least, Judge Pryor’s vote!

After reading the opinion in United States v. Nunez, one beloved (and anonymous) Blue Notes contributor penned our first-ever Eleventh Circuit Board poem. And here it is, an ode to the Maritime Drug Law Enforcement Act, complete with a photograph lifted from the published opinion:

‘Twas Christmas Eve of 2’18
And the Coast Guard was out on patrol.
They spied a boat in great distress
‘Twixt the D.R. and Puerto Rico.

They crept up close and shined a light.
Saw four men in motion who seemed a fright.
Tossing out bales, all tied up tight,
But the gig was up, and it was quite a plight.

Hey Captain, Who’s the Captain?
Called the Coast Guard to the men.
Our Captain? What Captain?
We’ve taken turns against the wind.

The law came aboard to take a look
And to rescue all before they drowned.
Yet no flag was flown, no colors shown,
And no registration was found.

Hey guys, Who’s the Captain?
They gave it another try.
Although all were shackled and U.S. bound
Still the men gave no reply.

The Coast Guard shrugged and lit a torch;
The boat went up in flame.
They all would answer for the crime.
They all would share the blame.

At trial, they challenged maritime law;
Jurisdiction was lacking, they cried.
No evidentiary hearing required the Judge
To rule their motions denied.*

* Where a boat in the open seas lacks a nationality, it is subject to the jurisdiction of the United States. Under federal maritime law, a vessel lacks a nationality when the captain fails to make a claim of nationality. No one made a claim of being in charge here, so the panel held that there could be no claim of nationality. Yet the panel acknowledged that the Second Circuit found that a crew’s failure to volunteer a claim of nationality did not create jurisdiction.  

Thus after all was said and done,
A circuit split it became.
So if you ever have a case like this,
You’ll want to raise this claim.

Contributors: Nicole Kaplan, Kimmy Sharkey, Melissa McGrane, Anonymous, and W. Matthew Dodge.