The Eleventh Circuit Board

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We begin with good news on both the Armed Career Criminal Act and the compassionate release statute, and then dive into the most recent Eleventh Circuit published opinions.

The Eleventh Circuit has finally made it official: A Georgia conviction for aggravated assault with a deadly weapon is, once and for all, not a violent felony under the ACCA. The en banc court in United States v. Moss issued an order this week reinstating the blessed panel opinion, 920 F.3d 752 (11th Cir. 2019). The court had no other choice after Borden v. United States, where the Supreme Court held that a crime with a recklessness mens rea cannot be an ACCA predicate. One caveat: The Moss opinion applies only to an aggravated assault WDW based upon the simple assault variant in O.C.G.A. § 16-5-20(a)(2) (a person “[c]ommits an act which places another person in reasonable apprehension of immediately receiving a violent injury”). Yet most Georgia convictions are based on this form of simple assault—Moss will apply nearly every time.

The Eleventh Circuit’s opinion in United States v. Bryant is vulnerable. There the panel majority held that a district judge is forbidden to grant compassionate release unless a defendant proves he fits into one of the impossibly narrow boxes written into U.S.S.G. § 1B1.13, comment. n.1(A), (B), and (C). In dissent, Judge Martin said otherwise. So too have eight other circuits. (Yes, eight!) Bryant’s lawyers chose to skip the en banc route and instead filed a certiorari petition in the Supreme Court. The petition and amicus briefs are terrific. Stay tuned.

On to the latest published opinions:

Dean Matthews attempted to purchase a rifle from a gun shop. The rifle fit various sizes of magazines, but the shop planned to sell it with a 30-round magazine. Yet when Matthews handled the rifle, there was no magazine attached, and the salesperson did not say what size magazine it would come with. Because he failed the background check, Matthews didn’t buy the gun, and he later pled guilty to making a false statement on the ATF form. On appeal, Matthews challenged the base offense level, which was enhanced under § 2K2.1(a)(3)(A) (applying to “a semiautomatic firearm that is capable of accepting a large capacity magazine”), because the rifle he tried to buy had no magazine in it. In United States v. Matthews, the Eleventh Circuit shot down the objection and, for the first time, approved of the enhancement in a lying-and-buying case. Why? The store sold large capacity magazines (and would have included one with the purchase of the rifle) and although the clerk never told him about the magazine, Matthews was an Army veteran familiar with guns and surely knew better. The district court reasonably concluded the gun was in close proximity to the larger magazines and did not clearly err in applying the enhanced base offense level.

Brandon Phillips assumed the identity of a 17-year-old girl and convinced a 14-year-old boy to send to him sexually-explicit videos. At trial, Phillips took home a silver medal. He was convicted of production, receipt, and possession of child pornography. On the production count, the district court instructed the jury that the government need not prove that Phillips knew the true age of the boy. On appeal, Phillips argued that the indictment, which included the phrase “knowingly and intentionally,” rendered the victim’s age an element of the offense and rendered the jury instruction wrong. In United States v. Phillips, the Eleventh Circuit disagreed. The Court held that knowledge of a victim’s age is not an element of a CP production offense, no matter what the indictment says, so the government need not prove that Phillips knew the victim’s age. One silver lining: the appeals court vacated Phillips’ conviction for possession of CP because it is a lesser-included offense of receipt of CP. Here both crimes arose out of the same event, so the double jeopardy clause bars conviction for both crimes.

Under the watchful eye of federal agents, Laneesa Colston picked up a drug-filled package at a post office. The government indicted (and the jury convicted) her of possession with intent to distribute cocaine and conspiracy to distribute cocaine under 21 U.S.C. §§ 841(a), 841(b)(1)(B), and 846. The trial court instructed the jury that the government needed to show only that Colston knew the package contained some variety of controlled substance, but not cocaine in particular. On appeal, Colston argued that the government had to prove that she knew that the package contained cocaine. The government conceded the point, but, in United States v. Colston, the panel rejected the argument anyway. The panel put to rest, at least in our circuit, whether a defendant must know the type of controlled substance (e.g., cocaine) she possessed. The answer is no. A person is guilty if she knowingly possessed an illegal drug of some sort, even if she does not know which one. But keep those objections coming—the circuit split on this topic is muddled and complicated, see United States v. Collazo, 982 F.3d 596 (9th Cir. 2021) (en banc) (6-5 vote in favor of the bad guys), so we ought to raise the issue anyway.

In United States v. Carrasquillo, the appeals court reaffirmed the notion in drug cases that “not all defendants who receive the [firearm] enhancement under § 2D1.1(b)(1) are precluded from relief under § 5C1.2(a)(2) (safety valve).” The panel said, “Where ‘a firearm was possessed’ by the defendant personally and yet the defendant also seeks the protection of the safety valve, the district court must determine whether the facts of the case show that a ‘connection’ between the firearm and the offense, though possible, is not probable.” In a footnote, the panel noted that “[t]he daylight between § 2D1.1(b)(1) and § 5C1.2(a)(2) is most likely to exist in cases where § 2D1.1(b)(1) applies based on a co-conspirator’s reasonably foreseeable possession of a firearm in furtherance of jointly undertaken criminal activity.” For a more expansive interpretation of the interplay between the firearms enhancement in drug cases and safety valve, check out this article by Todd Duncan in The Champion (May 2021): The 2D1.1 Weapon Enhancement and Safety Valve: Receiving the Former Does not Necessarily Exclude the Later.

Contributors: Rebecca Shepard, Stephen P. Johnson, Tom Hawker, Wes Bryant, and W. Matthew Dodge.

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