Posted by This week’s theme: the plain-error standard. An objection at the sentencing hearing will save a lawyer lots of heartburn on appeal. Prevention truly is the best cure.
It’s all about the isomers. A state cocaine offense that criminalizes “any” stereoisomer of cocaine is broader than the federal cocaine definition, which criminalizes only “optical and geometric isomers.” Thus, such state cocaine offenses shouldn’t qualify as ACCA predicates. In US v. Laines, an Eleventh Circuit panel issued a 2-1 decision that came really close to resolving that question once and for all … but it punted. Laines raised this argument on appeal but failed to raise it in the district court. So, the panel reviewed the question only for “plain error.” The majority pointed to old Eleventh Circuit decisions holding that the Florida cocaine statute qualified as an ACCA predicate (ignoring the fact that those prior cases never addressed the isomer issues, a point that matters after US v. Jackson (11th Cir. 2022), which the panel also ignored). The majority also cited Chamu v. U.S. Attorney General (11th Cir. 2022), which directly addressed the cocaine isomer issue (albeit in the immigration context), and where the panel “seriously doubt[ed]” that Chamu’s assertions about stereoisomers “ha[d] any scientific basis” based on the “mere possibility that it might be so.” Thus, the error wasn’t plain. Judge Rosenbaum dissented. What is the upshot? (1) The opinion leaves the door open for litigants to make this isomer argument—but you must raise your objection in the court below; (2) it now looks like the Eleventh Circuit may require a factual basis to demonstrate that isomers of cocaine that aren’t covered by the federal statute actually exist—it may not be enough to look simply at the statutes and argue that the state offense criminalizes more cocaine based solely on the text. But luckily, the Federal Defender Program acquired an expert affidavit that establishes this precise fact—stereoisomers of cocaine not covered by the federal cocaine statute do exist! So please let us know if you’d like our support. [By Sean Young].
Liver Gruezo, a crew member aboard a ship smuggling cocaine, pled guilty to a pair of drug crimes. At the sentencing hearing, the district court denied his requested minor-role reduction. Gruezo argued that the ship’s captain and other uncharged people were involved in the execution of a smuggling scheme much larger than this one trip, and that the court should not limit the relevant conspiracy to the crew members on the ship. In US v. Gruezo, the panel held that Gruezo’s argument was foreclosed by the rule in US v. De Varon (11th Cir. 1999), where the court “unambiguously held that a defendant’s role in the offense may not be determined on the basis of criminal conduct for which the defendant was not held accountable at sentencing.” Because the indicted conspiracy involved only the three people on the ship, the district court was right to ignore criminal activity by a larger group. For good measure, the panel noted that Gruezo’s job as a crew member was important enough to support the district court’s denial of the role reduction anyway. [By Millie Dunn].
Carlos Verdeza was convicted of several counts of healthcare fraud. At the sentencing hearing, he did not challenge the loss amount under U.S.S.G. § 2B1.1, but on appeal, he did. He pointed out (again, only on appeal) that the district court calculated “loss” using the application note’s expansive provision that defines loss as the greater of “actual” or “intended loss.” Indeed, after the Eleventh Circuit’s recent en banc opinion in US v. Dupree, a district court cannot resort to guideline commentary (i.e., an application note) unless the text of the guideline itself is ambiguous. “Loss” may not be ambiguous, and plausibly includes only the harm actually incurred by a victim. But because Verdeza failed to make the argument in the district court, he fell into the plain-error standard of review. In US v. Verdeza, the panel found that the loss-amount finding, even if it was error, was not plain error, because Dupree did not “specifically and directly resolve” the § 2B1.1 question (it addressed the controlled-substance-offense definition in U.S.S.G. § 4B1.2). So, without binding precedent on point, the panel affirmed the district court’s reliance on the application note. The lesson is this―when a defense lawyer hopes to avoid a guideline provision’s expansive application note, she must object in the district court and cite the rule in Dupree. [By Natasha Silas].
A jury convicted Dravion Sanchez Ware of conspiracy to commit Hobbs Act robbery, five Hobbs Act robberies, and five related 18 U.S.C. § 924(c) offenses. The court imposed a sentence of 20 years on each robbery count, plus life in prison on each § 924(c) count (concurrently, which, by the way, is an illegal sentence). Before trial, Ware challenged the reliability of fingerprint evidence. Citing reports by the National Resource Counsel and the President’s Counsel of Advisors on Science and Technology, Ware argued that there is no scientific basis for concluding that a given fingerprint was left by a specific person, and that human error and bias infect the process of evaluating fingerprint evidence. Ware asked for a Daubert hearing, but the district court refused, and simply admitted the government’s fingerprint evidence. On appeal, in US v. Ware, the panel held that the district court did not abdicate its gate-keeping role when it chose not to hold a hearing. And prints have been admitted forever. And Daubert is flexible (especially when it’s the government’s expert). And the opportunity to cross-examine the fingerprint examiner makes it all a-okay! Two more holdings in the opinion: It’s totally cool and not at all prejudicial to have the agents prosecuting your client be the ones to identify him in court. The government can get a “flight” jury instruction if your client hides under the bed during his arrest, even if the arrest is 12 days after the criminal conduct. Why would anyone hide from the FBI if not to conceal their offense? Unbelievable. [By Nicole Kaplan].
The Blue Notes 