The Eleventh Circuit Board

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Okay, we get it. Any Georgia aggravated assault with a deadly weapon conviction (at least one based on reasonable-apprehension simple assault) is no longer an ACCA violent felony. In US v. Carter, the panel used a pinch of Moss, added a dash of Borden, and baked a perfectly done opinion telling us what we already knew: the crime involves recklessness, so it’s out. The true value in Carter will be tested later when we ask courts to apply Borden to other statutes with a recklessness mens rea (looking at you Georgia voluntary manslaughter!) or even general-intent crimes (federal bank robbery, anyone?).

The Supreme Court held in Rehaif that 18 U.S.C. § 922(g)’s “knowingly” scienter applies to an offender’s status as a convicted felon. In US v. Leonard, the government tried to comply with Rehaif by drafting the indictment this way: The defendants “possessed a firearm . . . having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, and did so knowingly.” Not exactly perfect. Leonard challenged the sufficiency of the indictment, but the district court demurred. On appeal, the panel punted the question of whether the indictment’s final phrase extended the “knowingly” requirement to the status element, and held instead that any error was harmless. Put another way, a Rehaif error is not structural error. The panel also offered this pragmatic (and troubling) observation: “The criminal justice system is run by human beings. Though we all owe our best efforts, perfect proceedings are not required—or even possible.” Besides, said the panel, Leonard’s attorney raised the issue in the district court, so “he knew what was going on” and knew to address the status element at trial.

Under the Armed Career Criminal Act, a “serious drug offense” is a crime that “involves” the “distributing” of a controlled substance. The Virginia drug statute criminalizes the “giving” of drugs, even to friends or family and even for free. In US v. Stancil, the panel affirmed an ACCA sentence based on three such convictions and wrote an opinion any lexicographer would love. The word “involving” means that the state statute need not precisely match the specific acts listed in the ACCA’s serious-drug-offense definition. The word “distributing” does not require a transaction involving money (or anything of value), so it includes an act of giving. Finally, the panel rejected Stancil’s brave argument that because “social sharing among users” is not “serious,” it cannot be an ACCA “serious drug offense.” The panel, a bit piqued, retorted that it’s the circuit’s case law, not “Stancil’s subjective impression of the gravity of his past crimes,” that controls.

In US v. Dudley, another § 922(g) case, the district court applied the ACCA because Dudley once pled guilty to assaults in three separate indictments, albeit in a single state-court hearing. Yet those state indictments did not include dates of the offenses. Only at the plea hearing did the state prosecutor claim the crimes occurred on different dates. The state court never asked Dudley to confirm that fact, and he didn’t. Fast forward to the federal case: Dudley objected to the ACCA enhancement because the Shepard materials (the plea transcript) did not include his admission that the violent felonies were “committed on occasions different from one another.” He lost. The appeals court affirmed: Although a plea colloquy transcript is only a Shepard-approved source if the defendant “confirms” the factual basis for the plea, an implied confirmation (that is, silence in the face of a proffer) is sufficient proof. In dissent, Judge Newsom proposed a better path: Shepard requires a bright-line rule that allows a court to rely on a plea colloquy only when the defendant has expressly confirmed the factual basis (including the dates of the offenses). He also questioned the constitutionality of judicial fact-finding on the ACCA’s occasions-different requirement. Judge Newsom invited en banc review and, indeed, Dudley filed a terrific petition for rehearing.

If this guy didn’t deserve to have his job-destroying, life-crushing supervised-release conditions modified, then who does? José Cordero, convicted of accessing a website with intent to view child pornography, was sentenced to twelve months and a day in prison, plus ten years on supervised release. He had an exemplary military record and no criminal history. A condition of supervised release required him (or the probation officer) to notify third parties of his CP conviction. On supervised release, Cordero worked by installing security systems in newly-built homes. The probation officer balked because minor children occupied some of these homes. Cordero then chose to work only on commercial buildings, but the PO still had “concerns” and wanted to disclose Cordero’s sex-offender status to his current (and future) employers. In the district court, Cordero objected because the notification would destroy his business. Yet the court upheld the notice condition, upheld an internet ban, and refused to terminate supervised release early. In US v. Cordero, the Eleventh Circuit affirmed all of this, and declared for good measure that a defendant cannot challenge the legality of a supervised-release condition at the modification-of-conditions phase of the case—that must be done only through direct appeal or a § 2255 motion. It’s going to be a steep uphill battle to get any of our CP clients successful modifications or early termination of supervised release. Epilogue: The appeals court took nearly three years to decide this case. Meanwhile, two weeks after the opinion came out, Cordero, back in the district court, filed a fresh motion to terminate supervised release. The motion is still pending.

Contributors: Rick Holcomb, Suzanne Hashimi, Allison Dawson, and Byron Conway.

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