The Eleventh Circuit Board

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How safe is a sentence of probation? If the government appeals and if Senior Judge Ed Carnes is on your panel, not safe at all. In United States v. Howard, a jury convicted a physician of accepting kickbacks in a multi-million-dollar healthcare scheme. The guideline range was 78-97 months in prison, yet the district court imposed a sentence of 36 months of probation, including 12 months of home confinement. The government appealed, contending that Bramwell’s sentence was unreasonably lenient. The unanimous panel agreed. This sentence, Judge Carnes wrote, was not even a slap on the wrist, but “more like a soft pat.” The panel cosplayed the role of a district judge and recalibrated the 18 U.S.C. § 3553 factors to its own liking. The panel superimposed its own view that the probation sentence did not reflect the seriousness of the offense, promote respect for the law, and provide just punishment. It also held that the district court relied too heavily both on the doctor’s collateral consequences, including her loss of medical license and convicted-felon status, and the financial pressures of running a medical practice, pressures that led her to commit the crime. With a thumb on the scale of justice, the panel also whitewashed the doctor’s personal history: “The district court also unreasonably allowed [her] exemplary pre-criminal life and her good qualities, as attested to by her relatives, friends, and acquaintances, to outweigh the combined force of all the other factors warranting a sentence of imprisonment.” On remand, the panel directed the district court to impose a “non-token” period of incarceration. One can only wonder when (or if) the Eleventh Circuit will ever apply such scrutiny to sentences that are too high, not too low. We continue to suffer from the “one-way ratchet” identified (and lamented) years ago first by Judge Barkett and later by Judges Martin and Wilson.

In United States v. Lee, where the defendant sent a text message to a minor asking for sexually explicit images, the government indicted him only for the crime of solicitation of child pornography under 18 U.S.C. § 2251(d). At trial, the district court granted Lee’s Rule 29 motion because the Eleventh Circuit had recently clarified in United States v. Caniff that conduct like Lee’s could not meet § 2251(d)’s “notice” element. Undeterred, the government filed a fresh indictment, this time charging Lee with an attempt to entice a minor in violation of 18 U.SC. § 2251(a). Yet the second indictment aimed at the exact same conduct and relied on the exact same proof as the first. Was this successive prosecution a violation of the Double Jeopardy Clause? The Eleventh Circuit said no. Why? Because § 2251(a) requires certain proof that § 2251(d) does not and vice versa. While § 2251(d) does indeed include a notice element, § 2251(a) requires independent proof that the defendant arranged for a minor to engage in sexually explicit conduct for the purpose of creating a depiction of that conduct. Because a hypothetical defendant (and Lee himself, it seems) could violate one statute and not the other, the two offenses were not the same and there was no Double Jeopardy violation.

While spouting sovereign citizen gibberish, Elbert Williams told a district court judge that he wanted to represent himself. Because of that sovereign citizen gibberish, the judge refused. Later Williams pled guilty and was sentenced to 151 months in prison. With the judge’s denial of self-representation based solely on Williams’s sovereign-citizen beliefs, the issue of the voluntariness of the plea was teed up for appeal. However, instead of raising the Faretta v. California issue, new appellate counsel twice (!) filed a (yuck) Anders brief. The appeals court twice rejected the Anders briefs and instructed counsel to write on both the Faretta claim and whether Williams, through his guilty plea, waived the structural Faretta error. In defiance of the court order and despite a circuit split on that very issue, Williams’s appellate counsel did not bother to raise the latter issue in her opening merits brief. In United States v. Williams, the panel held that counsel waived the issue, so it did not address the circuit split or the merits of the Faretta claim.  However, the panel, in a moment of apparent compassion, urged Williams to file a 28 U.S.C. § 2255 motion. Two practice tips: When the Eleventh Circuit tells you to brief an issue, brief it; and because sovereign citizens often have conflicts with lawyers, in any appeal of a sovereign-citizen case, investigate potential Faretta issues. We see the benefit of these simple tactics in the very next case.

As we have long suspected, being represented by an attorney is pretty important when you’re accused of a crime. Saleem Hakim disagreed and sought to represent himself on three misdemeanor counts of failing to file tax returns. At the Faretta hearing, the magistrate judge warned Hakim of the perils of proceeding pro se, but at the same time misinformed him that if convicted Hakim faced no more than one year in prison (not on each count, but in total). Hakim represented himself from arraignment all the way through jury selection before asking standby counsel to step in for the trial. A jury convicted Hakim of all three counts and the district court sentenced him to 21 months of imprisonment (far more than the 12 months he expected). The issue on appeal: Did Hakim knowingly waive his right to counsel when he was misinformed about the potential consequences (i.e., the maximum total sentence) upon conviction? No, and his conviction must be set aside. In United States v. Hakim, a split panel reviewed the issue de novo and determined that Faretta demands a defendant be made aware of all “dangers” of self-representation, including “the relevant circumstances and likely consequences of conviction.” Because Hakim was denied the right to counsel during critical stages of the pretrial process (arraignment, plea negotiations, and a failed change of plea hearing) the constitutional violation was structural and required reversal.

Contributors: Tom Hawker, Vidhi Joshi, Brian Mendelsohn, and Caitlyn Wade.

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