The Eleventh Circuit Board

Let’s say you intend to solicit sex from minors, but you do not cross state lines, and the minors (fictional as they may be) also do not cross state lines. Is your use of the internet or cell phone to arrange the fake, intrastate rendezvous sufficient to meet the “in or affecting” interstate commerce element under the child-sex trafficking statute, 18 U.S.C. § 1591(a)(1)? Yes, said the Eleventh Circuit in United States v. Tovar. And, under the plain error standard, the government does not commit misconduct during closing argument if it argues that this interstate commerce element “was not really in dispute” because you stipulated you used “two facilities of interstate commerce.” The panel also held that despite conflicting prior precedent, this element, “in or affecting interstate commerce,” was not jurisdictional—rather, it was just an element of the offense. Finally, the panel also rejected Tovar’s argument that the district court’s jury instruction equated the use of interstate-commerce facilities with “per se satisfaction of ” the interstate commerce element. [By Vidhi Joshi].

The district court sentenced Nikequis Green to a mandatory-minimum, 15-year sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The ACCA applies to people who violate 18 U.S.C. § 922(g) and have “three previous convictions . . . for a violent felony or a serious drug offense or both.” A “serious drug offense” is defined as “an offense under State law, involving . . . possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.” In Green’s case, the court applied the ACCA enhancement based on an Alabama marijuana conviction which, under state law, carried a maximum penalty of 10 years in prison. On appeal, Green argued that if the identical crime were prosecuted by the federal government, it would not count as a “serious drug offense” because the maximum sentence for the same conduct under federal law would have been merely five years in prison. This arbitrary inconsistency, he argued, violates the Fifth Amendment’s due process clause. In United States v. Green, the Eleventh Circuit rejected the argument and affirmed the sentence. The panel reasoned that each state gets to treat crimes differently based on community needs, so Congress, through the ACCA, has a rational basis to respect those differences. [By Alejandro Fernandez].

In Baldwin County, Alabama, police officers stopped a car and found evidence of fraud: illicit identification cards, credit cards, and checks in the front seat, plus a printer, a check encoding machine, and stolen checks in the trunk. Two men sat in the front seat, and Timothy Buchanan sat in the back seat. Although Buchanan did not possess any contraband himself, his role in the conspiracy was to use the false identifications (in the front seat) to cash reproductions of stolen checks (in the trunk). He was later convicted at trial of all sorts of fraud-related crimes. On appeal, he challenged his aggravated identity theft conviction (18 U.S.C. § 1028A) under the new rule in Dubin v. United States, 599 U.S. 110 (2023). The panel brushed aside the Dubin claim. Buchanan, in his role, possessed checks (which count as means of identification) and this was the “crux,” per Dubin, of his parallel crimes of possessing identification cards. Put another way, police officers found an ID card in the front seat that Buchanan later intended to use to cash an altered check in the trunk. Even though he did not actually possess either the check or the identification card, his convictions for aiding and abetting those offenses was a proper basis for the § 1028A conviction. So, convictions affirmed. But the panel offered good news for Buchanan on his sentence. The district court wrongly applied the sophisticated means enhancement under U.S.S.G. § 2B1.1(b)(10). How so? It focused only on the offenses generally, rather than on Buchanan’s own conduct. Finally, the Court agreed with Buchanan that two checks which were stolen and cashed by others before he joined the conspiracy must not be included in his restitution order. [By Tom Hawker].