The Eleventh Circuit Board

If the Supreme Court takes a long summer hiatus, and it does, then we hope you’ll forgive us for doing the same (minus the free flights on private jets, of course). But, a month earlier than the high court, we are back.

Sharp penalties are in store for anyone convicted of sexually exploiting children under 18 U.S.C. § 2251. One way of violating the statute is to “use[] . . . any minor to engage in . . . sexually explicit conduct.” Edgar Dawson, Jr., was so charged for filming short videos—which he shared online with someone who turned out to be an undercover FBI agent—of himself masturbating in very close proximity to his clothed eleven-year-old daughter, unbeknownst to her. Dawson moved to dismiss the charges pre-trial and at the conclusion of a bench trial, but his motions were denied and he was convicted and sentenced to 50 years in prison. He renewed his arguments on appeal, contending that the statute does not reach solo, adult-only sexual conduct that did not involve the minor in the sexual act. In US v. Dawson, the panel disagreed, finding that the ordinary meaning of “uses,” along with the context provided by neighboring statutes, supported applying the law to Dawson’s conduct. It distinguished the hypothetical of a person filming himself masturbating to a minor across the street; Dawson admitted he was stimulated by a child’s immediate presence. This holding creates a split with the Seventh Circuit, which cited that hypothetical in finding that the law requires that it be the minor, not the offender, who is engaged in sexually explicit conduct. Dawson has since filed a certiorari petition, which is pending, so anyone facing this charge under similar circumstances will want to preserve the issue. [By Joe Austin.]

In US v. Penn, the appellant argued that his two sale-of-cocaine convictions, which involved the sale of similar amounts of cocaine to a confidential informant at the same location thirty days apart, did not occur on “occasions different from one another,” and cannot support an enhanced sentence under the Armed Career Criminal Act and the new rule in Wooden v US, 142 S. Ct. 1063 (2022). The panel looked to the ordinary meaning of the word “occasion”―an episode or event. In determining whether two offenses occurred on the same occasion, the panel named several relevant factors: the amount of time between offenses, the proximity of the locations where the offenses occurred, and whether the offenses are part of the same scheme or achieve the same objective. Here the panel resolved the case on the first factor, and held that no reasonable person could say that Penn’s two cocaine sales, thirty days apart, occurred on the same occasion. Whatever the similarities between Penn’s offenses, the similarities could not overcome the substantial gap of time. The Court did note that a closer case might involve “a defendant who sells drugs to the same undercover police officer twice at the same street corner one hour apart.” However, in Penn’s case, the answer seemed obvious. His two sale-of-cocaine offenses did not occur on the same “occasion” in the ordinary sense of the word, and he was properly sentenced under the ACCA. [By Keenen Twymon.]

A pardon does not by itself confer a clean slate. James Batmasian was convicted of failure to pay federal withholding taxes. After he completed a prison sentence and paid a fine, the state Governor restored his civil rights, and the President issued him a complete pardon. Feeling a tide in his favor, Batmasian filed a motion in the district court to expunge his conviction. Batmasian said that although he had been pardoned, the conviction still hurt because it hindered his First Amendment right to engage in philanthropy to the fullest extent possible. (Wait, is that a thing?) He argued that a district court, although no statute grants it such power, nonetheless possesses “ancillary jurisdiction” to hear such claims. The district court held that it lacked such jurisdiction but chose to deny the claim on the merits anyway. In US v. Batmasian, the Eleventh Circuit held a district court may have ancillary jurisdiction over a motion for expungement where the motion challenges the constitutionality of an arrest or a conviction. Yet because Batmasian made no such claim here, the panel held that the district court lacked jurisdiction to consider the merits of the expungement demand at all. [By Kendal Silas.]

District courts are required, under 18 U.S.C. § 3553(c), to explain why they pick the sentences they do. And for good reason. This allows the parties, and the appellate courts, to determine whether the sentence is legitimate. In US v. Hamilton, the Eleventh Circuit made clear that this requirement extends to imposing terms of supervised release because supervision is part of “the sentence.” This means that a challenge to supervised release based on § 3553(c) is subject to de novo review, even if the issue was not raised in the district court. Good news, right? Not entirely. The court removed teeth from this holding by finding that a district court doesn’t have to give a separate explanation for why it chose a specific term of supervised release―the reasons given for the term of imprisonment will do. Curiously, in what appears to be an attempt to stave off disappointment, the panel noted that, unlike a term of imprisonment, someone is not “locked in” to a term of supervised release because supervision can be modified in the future based on new information. Surely this gave little comfort to Hamilton, who faces a lifetime term of supervised release following his 40-year prison sentence, without the benefit of knowing why. But at least the panel gave us some helpful language about the “flexibility” district courts are afforded in modifying terms of supervised release. [By Michelle McIntyre.]