The Eleventh Circuit Board

Is the phrase “used or possessed a firearm in connection with another felony offense” under U.S.S.G. § 2K2.1(b)(6)(B) ambiguous? Yes, said the parties in United States v. James, but nay, said the Eleventh Circuit. It held that while the phrase has led to applications in quite unobvious and unanticipated circumstances, that just means the phrase is broad—not ambiguous. Because it’s not ambiguous, there is no need to consider or defer under the rule in Kisor v. Wilkie to the guidelines’ application notes about the phrase’s meaning. The panel also held that the district court did not err in finding that James possessed a firearm in connection with another felony offense. Although the district court relied on the application notes and found the fentanyl in the small car combined with James’s bag containing a gun was sufficient to earn a +4 enhancement, the panel took the leap one step further. Despite there being no proof that James ever sold drugs, the panel relied on the fact that when officers saw James, he was allegedly selling drugs wearing a cross-body bag and that same bag was found later that day to have a gun in it. Moral of the story? It’s unambiguous: guns and drugs, even *suspected* drugs, go together in the Eleventh Circuit. [By Vidhi Joshi].

A life-long friendship ended when Lawrence, who had once been married to Booker’s sister, provided the most damaging trial testimony against his best friend (and co-defendant) Booker. But however gauche you might find Lawrence, according to the Eleventh Circuit in United States v. Booker, nothing legally objectionable occurred. Takeaways from this opinion: (1) travel alone, rather than with a future co-defendant; (2) Alford pleas function as regular guilty pleas for impeachment purposes; (3) object to the juror if you want to preserve a claim regarding their bias; (4) the government can comment on the agreement they reached with the cooperating codefendant to show lack of improper bias; and (5) don’t keep a ledger with names and dollar amounts in a car with drugs and guns if you don’t want the government to opine that it’s a drug ledger. [By Alejandro Fernandez].

Brenes-Colon was convicted of multiple drug offenses and sentenced to 108 months. On appeal, he argued the district judge erred when he referenced a statistical claim (not in the record, but off the top of his head) that illegal drugs are “the number one killer of Americans between 18 and 35.” Brenes-Colon noted that the judge’s statistic was factually incorrect and improperly influenced his sentence. In United States v. Brenes-Colon, the Eleventh Circuit reviewed the claim under plain error because Brenes-Colon’s lawyer did not object at sentencing, and it affirmed the sentence. The panel wrote that district judges can use their own experience, common sense, and institutional knowledge in weighing the 18 U.S.C. § 3553(a) sentencing factors. The judge in this case referenced his own experience in sentencing drug cases and emphasized his concern with the volume of drugs involved in the case and the defendant’s major role in trafficking the drugs, and did not solely focus on the danger posed by those drugs. Thus, the case reinforces the breadth of discretion sentencing judges have to remark about social issues, criminal trends, etc. The main takeaway: As long as a judge doesn’t rest her sentence solely on demonstrably false information, plain error is a tough sell for the defense. [By Joe Blum].

Can a criminal defense attorney condition pretrial diversion on a client’s ability to pay $60,000 “up front” to get all the charges dropped by a prosecutor suspected of being a beneficiary of the up-front fee? Alas, yes, he can. But if, and only if, the U.S. Attorney’s Office wrongly charges the act as a Hobbs Act extortion violation via a duplicitous count and also induces the court to recite an improper jury instruction. In United States v. O’Steen, the FBI was investigating a state attorney in Florida for corruption. A defendant charged by that prosecutor told the FBI that his lawyer, O’Steen, told him that he (the defendant) had to pay the prosecutor for a favorable disposition of the case. The federal government then charged the two lawyers with a handful of crimes. The prosecutor pled guilty. O’Steen took his chances at trial and was convicted of violating the Hobbs Act by extorting money from his client. On appeal, the Eleventh Circuit reversed the Hobbs Act conviction because the count alleged eight (yes, eight!) separate offenses; the count was duplicitous in violation of Rule 8(a) of the Federal Rules of Criminal Procedure. Meanwhile, the same count charged O’Steen with aiding and abetting the prosecutor on the alleged extortion. The government had to prove that the prosecutor, as a principal, was guilty of extortion. But the jury was never told what had to be shown to convict O’Steen of aiding and abetting, and, what’s more, there was “not a shred of evidence” to support a conviction of the defense lawyer as the prosecutor’s accomplice. [By Tom Hawker].