The Eleventh Circuit Board

Curtis Solomon, Devin Chance, and Jamaur Lewis were convicted of one count of Hobbs Act conspiracy, multiple counts of Hobbs Act robbery, and multiple counts of carrying a firearm during a crime of violence under 18 U.S.C. § 924(c), each predicated on one of the Hobbs Act robbery convictions. The three men brought 28 U.S.C. § 2255 motions challenging whether Hobbs Act robbery is a crime of violence under § 924(c). They cited the rule in United States v. Taylor, 596 U.S. 845 (2022), where the Supreme Court held that attempted Hobbs Act robbery is not a crime a violence because it does not always include, as an element of the offense, that a defendant used, attempted to use, or threatened the use of physical force. However, because Taylor did not address the completed crime of Hobbs Act robbery, the Eleventh Circuit held in United States v. Solomon that Taylor did not disturb the Eleventh Circuit’s prior precedent holding that Hobbs Act robbery is a crime of violence. The prior panel precedent rule requires that an intervening Supreme Court case actually abrogate or directly conflict with the holding of the prior panel, not merely weaken it. In both United States v. St. Fleur, 824 F.3d 1337 (11th Cir. 2016), and United States v. Wiley, 78 F.4th 1355 (11th Cir. 2023), the Eleventh Circuit held that the elements of a completed Hobbs Act robbery require the use, attempted use, or threatened of physical force. Thus, the panel here held that the Hobbs Act robbery predicates did not give rise to a jurisdictional defect in the appellants’ § 924(c) convictions. [By Kendal Silas].

Robert Scott Kennedy had four potential Armed Career Criminal Act (“ACCA”) predicate convictions, all under Georgia law, which would mandate a mandatory minimum of 15 years in prison under 18 U.S.C. §924(e): (1) a 1998 burglary of a dwelling; (2) a 1999 burglary of a building; (3) a 2011 possession of methamphetamine with intent to distribute (meth PWID); and (4) a 2015 possession of marijuana with intent to distribute (MJ PWID). The district court found that the 1998 burglary, meth PWID, and MJ PWID were ACCA predicates, without deciding on the 1999 burglary. On appeal, Kennedy challenged the 1998 burglary and MJ PWID convictions and asserted that the government waived arguing that the 1999 burglary was a predicate at sentencing by stating that it was the “least clear” predicate and that the enhancement “should be based” on the other convictions. In United States v. Kennedy, the Eleventh Circuit found that the two burglary convictions and the unchallenged meth PWID qualified Kennedy for the ACCA. The panel relied on the undisputed fact in his PSR that for the 1999 burglary, he entered a “building” that belonged to another person, which fit within the generic definition of burglary of a “dwellin[g] or buildin[g] housing a business.” The panel stated in a footnote, “Kennedy did not dispute those facts and has not contested them in this Court. We may rely on those undisputed facts when we decide whether Kennedy’s prior convictions qualify as ACCA predicate offenses.” This case is a good reminder that we should err on the side of clarifying or objecting to the facts of any potential ACCA predicate offense in a PSR, unless we have good reason not to. Sadly, here, all four potential ACCA predicates came to bat. [By Roz Chang].

Mark Gyetvay, an American citizen, worked as the Chief Financial Officer for Russia’s largest private natural gas provider. Earning millions in compensation, Gyetvay decided to not pay his taxes. The government prosecuted (and convicted) him for tax evasion. Unfortunately for the government, the Eleventh Circuit found that two of the convicted counts for failure to file income tax returns—violations of 26 U.S.C. § 7203—were barred by the six-year statute of limitations. In United States v. Gyetvay, the panel held that the government’s tolling application failed to identify the two § 7203 offenses as the target for the investigation. As such, these offenses were barred under statute of limitations. Further, the panel found that the district court failed to make the requisite findings required by the tolling statute. A district court must make “findings supported by a preponderance of the evidence before suspending the running of the statute of limitations for the offense under investigation.” Here the district court made no such findings concerning Gyetvay’s failure to file income tax returns; instead, it retroactively applied its findings for other charged conduct to the two disputed income tax counts. Finally, the Eleventh Circuit held that the district court failed to provide any explanation in support of its $4 million restitution order. The panel remanded the restitution issue back to the district court so that it could make a finding with “enough clarity to substantiate an appellate review.” [By Stephen P. Johnson].