The Tuttle Report

Have you ever wondered why, in 1989, Congress chose to name the Eleventh Circuit courthouse after Judge Elbert P. Tuttle, Sr.? His life as a lawyer and as a judge was remarkable. In a third-floor corridor at the courthouse, you’ll find a curated display case dedicated to Judge Tuttle (right next to an equally moving history of Judge Phyllis A. Kravitch). And check out Judge Tuttle’s biography on the New Georgia Encyclopedia website. The tale is a sharp contrast to (and a rebuke of) the life chosen by his contemporary, Senator Richard B. Russell, Jr., the man for whom our district courthouse is named.

Our local appeals court has been busy this summer. Last week, the en banc court heard oral arguments by marvelous federal public defenders (Conrad Kahn from Orlando and Tracy Dreispul from Miami) in two significant criminal cases.

In United States v. Dupree, the full court will decide whether under the sentencing guidelines an inchoate drug crime (conspiracy or attempt) qualifies as a “controlled substance offense.” The plain text of the guideline itself, U.S.S.G. § 4A1.2(b), includes only completed, not inchoate, drug crimes. But in the commentary, Application Note 1, the Sentencing Commission expands that definition to include conspiracies and attempts. Under the Supreme Court’s rule in Kisor v. Wilkie, is the Commission’s commentary here binding on district courts, or must they ignore it?

In United States v. Garcon, the en banc court will define the scope of 18 U.S.C. § 3553(f)(1), the safety-valve statute. Through the First Step Act, Congress rewrote the statute to increase the pool of drug defendants eligible for the safety valve (that is, for a sentence below the mandatory minimum). Under the old statute, a person was eligible only if he had zero or one criminal history points. Under the new statute a person is eligible if he “does not have—(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.” Garcon says that a person is eligible so long as he does not check all three boxes: (A), (B), and (C). The government (and the original panel) say that Congress could not possibly have meant to be that generous, so a person is eligible unless he fits into any one of these categories: (A), (B), or (C). The en banc court, then, must decide whether “and” means (1) “and” or (2) “or.” (I’m going with the dictionary on this one.)

On both issues, keep those objections coming. It feels like a change is gonna come.

What about the seat left open by Judge Beverly Martin’s retirement last September? Still empty. Nearly 18 months into the Biden Administration, we continue to live in a circuit in which a majority of active judges (six of 11) were nominated by our previous president. In the meantime, Nancy Abudu’s nomination has stalled. Last month, the Senate Judiciary Committee deadlocked over Republicans’ criticism of her employer, the Southern Poverty Law Center. The Committee failed to favorably send the nomination to the full Senate. Democratic majority leader Chuck Schumer must file a discharge motion to advance the nomination, but he has not yet done so. And so we wait.