The Eleventh Circuit Board

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The Biden Administration has nominated no one to fill Judge Beverly Martin’s seat. When Judge Martin announced her retirement, she said then that her last day would be yesterday. If that’s still true, we now have an empty seat on our local appeals court. The bloc of six Trump-nominated judges are suddenly a majority of the 11 active judges. A friend of the blog quipped: “Trump would have filled that seat by now.” True. In the meantime, the Court carries on with its published opinions.

It’s a bad sign for an appellant when the first line of an opinion recounts that for a decade, he “used a grotesque combination of physical abuse and emotional manipulation to force vulnerable young women to work for him as prostitutes.”  As one would expect for this fellow, things went downhill from there. In US v. Williams, the Eleventh Circuit effortlessly found that his sentence of five life terms (plus 240 months) was perfectly reasonable, that consent of the victim is not a defense to sex trafficking, and that it is not unduly prejudicial to present graphic, sexually explicit photographs of the victims to the jury during trial (especially when during voir dire the jurors said they’d have no objection to seeing the photographs—problem solved). The only issue that drew serious attention from the panel was a restitution question (although not Williams’s claim that the victims’ living expenses that he paid when he held them captive should be deducted from restitution). One victim told  an investigator that she did not want any of Williams’s money and was rejecting restitution. The district court ordered the full amount anyway. The panel agreed because the law requires a court to order restitution. If she wishes, the victim may assign her restitution payments to the federal Crime Victim’s Fund, but Williams is still on the hook for the money.

Two Miami cops got caught up in a reverse sting operation providing armed protection to drug couriers/informants. One of the officers pursued an entrapment defense on the theory that he wasn’t aware of the illegal activity at first and only realized after being told by a government agent. The jury wondered, “Do we apply the entrapment definition to each date/count or is it one decision based on the initial date of contact for each defendant?”  The trial court told the jury to consider each crime, and the evidence relating to it, separately. In US v. Harris, the Eleventh Circuit agreed. While the entire “course of conduct” may matter for the inducement prong (to get an entrapment defense before the jury), the jury then has to consider the defendant’s predisposition for each individual criminal act charged. Convictions affirmed.

What’s a party you don’t want to be invited to? Party to the crime of Georgia burglary. In US v. Coats, the defendant was convicted of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g). He objected to an ACCA enhancement because, in spite of the holding in US v. Gundy, 842 F.3d 1156 (11th Cir. 2016), the party-to-a-crime variant of Georgia burglary ought not count. He argued that Georgia’s party-to-a-crime statute is broader than the federal generic version of accomplice liability. The panel demurred and held that Georgia’s party-to-a-crime statute is not broader than the generic accomplice standard. (The panel noted one promising exception, though: Georgia’s party-to-a-crime liability as to aggravated assault may well be broader than the federal generic standard. Keep those objections coming.) One last bit of advice: When you punch a confidential informant in the face inside the jail before, rather than after, the federal indictment, don’t expect to avoid an obstruction enhancement or earn an acceptance-of-responsibility reduction. Not going to happen, says the panel.

In Section 404 of the First Step Act of 2018, Congress authorized district judges to reduce the sentence of a defendant convicted of a “covered offense.” That term (generally) means a high-quantity crack-cocaine offense in which the defendant was sentenced before 2010. But what about a defendant who completed his prison term on the drug offense long ago, and is now serving a new prison sentence following a revocation of supervised release? Is this, too, a covered offense eligible for a reduction? Yes, said the panel in US v. Gonzalez, when the underlying conviction was itself a covered offense. The good news, however, was short lived for Gonzalez. The panel held that the district court, while wrong on First Step Act eligibility, properly exercised its wide discretion not to reduce his sentence.

Contributors: Brian Mendelsohn, Caitlyn Wade, Colin Garrett, Jeff Ertel, and Matthew Dodge.

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