The Eleventh Circuit Board

Have you ever received a written judgment only to scratch your head because you cannot recall the judge discussing one or more supervised release conditions at sentencing? Nevertheless, there they are, in the judgment. That doesn’t seem fair. You didn’t get the chance to even object. Well, you’re right. It was unfair. And the Eleventh Circuit, in US v. Rodriguez, agrees. In fact, it is a violation of due process. On appeal, Rodriguez challenged the imposition of 13 discretionary conditions of supervision which were not discussed at sentencing yet showed up for the first time in the written judgment. Without shame, the government argued that the issue should be reviewed for plain error; after all, Rodriguez failed to object to the conditions at sentencing. This was quickly rejected because, well, how could he object? The conditions were included for the first time in the written judgment. The panel held that a district court must pronounce at the sentencing hearing any discretionary condition of supervised release―that is, any condition other than those mandatory conditions set forth in 18 U.S.C. § 3585(d). The sentencing court can satisfy this requirement by expressly referring to an administrative order containing the conditions or by simply adopting the conditions set forth in the PSR. That way, a defendant can object. Once the district court satisfies this minimal requirement, the defendant has the chance to argue that the condition is unnecessary, is unreasonably onerous, or does not apply to his or her circumstances. So, know the supervision conditions recommended in the PSR. Know the discretionary conditions contained in any standing administrative order. And know the difference between mandatory conditions and discretionary conditions in § 3585(d). If you have your objections ready, you will not be stuck with plain error. The panel remanded for Rodriguez to be heard on the surprise conditions and for the district court to decide whether to impose the discretionary conditions after all. [By Tom Hawker].

In US v. Gonzales, the Eleventh Circuit held that a supervised release revocation sentence can be reduced under § 404 of the First Step Act. Gonzalez had been convicted and sentenced in 2005, and at that time the underlying conviction—possessing with intent to distribute cocaine base—was a Class A felony. His supervision was revoked in 2015, and the court sentenced him to 57 months on the revocation. However, through the Fair Sentencing Act of 2010, his crime has since been reclassified as a Class B felony with a three-year maximum prison sentence for a revocation. Here the Eleventh Circuit panel had to determine whether revocation sentences are eligible for reduction under the First Step Act. Because the term of supervised release is part of the sentence, the panel concluded that as long as the original offense is a First Step Act “covered offense,” a subsequent revocation sentence is eligible for reduction. Sadly for Gonzalez, the panel determined that the district court had not abused its discretion in denying his First Step Act motion—although the district court could have reduced the revocation sentence, it was not required to do so. Although Gonzalez did not receive any relief, his case clarifies that we can seek First Step Act sentence reductions for any client subject to revocation when the underlying conviction is a covered offense. [By Rebecca Shepard].

Does an Alabama youthful-offender (“YO”) adjudication qualify as a “conviction as an adult” under §§ 2K2.1 and 4A1.2 of the Sentencing Guidelines, and thereby raise a defendant’s base offense level? In US v. Jews, the Eleventh Circuit said no. The court applies a four-factor test to any juvenile adjudication: (1) how state law “technically classifies” the case; (2) “the nature of the proceedings;” (3) “the sentence received;” and (4) “the actual time served.” Here is how the test applies to Alabama YO adjudications: The state itself does not classify a YO adjudication as a conviction; an Alabama YO adjudication does not involve the “usual hallmarks” of a criminal trial and does not entail the practical consequences of an adult conviction; Jews’s sentence was three years in prison; and he served a substantial portion of that sentence. The last two factors, although they weigh against Jews, are the least important. Because Alabama itself does not consider its own YO cases to be convictions, and because the adjudication just did not come close to mirroring a criminal trial, it cannot count as a predicate under the guidelines. The district court erred in using the YO adjudication to apply a higher base offense level. [By Stephen P. Johnson].

Following a multi-count, multi-defendant trial against alleged members of the Gangster Disciples, all but one claim among many were denied on appeal. In US v. Caldwell, the single successful claim involved a recent shift in the law. The Supreme Court held in US v. Taylor, 142 S. Ct. 2015 (2022), that attempted Hobbs Act robbery is not a “crime of violence” under 18 U.S.C. § 924(c), so Caldwell’s § 924(c) count was suddenly unlawful, and the panel remanded for the district court to strike the ten-year consecutive sentence on that count. The other claims included the trial judge’s refusal to play a video during voir dire to educate jurors on the effects of racial bias on decision-making, the denial of an expert witness whose notice was untimely, the use of hidden ankle shackles during the trial for all defendants, the superfluous display and handling of firearms that were in evidence, the questioning of one witness by the judge, the denial of a suppression motion aimed at the fruits of a wiretap, various objections over the verdict form, the sufficiency of evidence on one count, and the substantive reasonableness of lengthy sentences. The Eleventh Circuit panel, using an abuse of discretion standard, found the district court to be within its discretion on all issues, and even “well within” its discretion when it questioned a witness itself. [By Alejandro Fernandez].