The Eleventh Circuit Board

BNB Quiz Questions:

1. Does an attempt to commit a crime of violence always qualify as a crime of violence under the sentencing guidelines?

2. Why might a Confrontation Clause challenge to an out-of-court statement (say, a 911 call) be defeated even before asking whether the statements were testimonial in nature?

3. What do you get when you superimpose your own face onto a movie poster depicting a drug kingpin and the poster is found in a room with drugs?

Eleventh Circuit Opinions:

Does an attempt to commit a crime of violence always qualify as a crime of violence under the sentencing guidelines? In US v. Ott, the Eleventh Circuit, unfortunately, answered yes. In November 2023, the Sentencing Commission amended the guidelines to define “crime of violence” as including any attempt to commit a crime of violence. U.S.S.G. § 4A1.2(a), (d). Following this amendment, we still apply the categorical approach to determine which offenses qualify as crimes of violence. However, we only apply the categorical approach to the crime a defendant attempted to carry out not to the attempt itself. So, if a completed crime, say a Georgia armed robbery, qualifies as a crime of violence under subsection (a), then a conviction for attempted Georgia armed robbery automatically qualifies under subsection (d). [By Caitlyn Wade].

Holley shot at a postal worker from his townhouse with a scoped rifle, hitting her car. At his trial, Holley challenged police body-camera footage in which bystanders identified him, plus a 911 call about the incident. He lost these challenges, then the trial, and appealed. In US v. Holley, the Eleventh Circuit held that the video evidence did not violate the rule against hearsay because the statements were not offered for the truth of the matter asserted—that Holley was the shooter—but instead simply explained police actions in setting up a barricade and taking other precautions. This not-for-the-truth purpose was validated by the government not arguing that the statements pointed to Holley’s guilt, and by a careful limiting instruction from the judge and quizzing of the jurors that they could follow it. (But even had the statements been hearsay, exceptions would have applied for present-sense impressions or excited utterances.) Since the statements were non-hearsay, there was no need to go further into Confrontation Clause analysis. Even so, the Court held in the alternative that the video footage showed nontestimonial statements meant to address an ongoing emergency. The 911 call was admitted at least in part for its truth—that someone “shot at the mail lady”—but it qualified for a hearsay exception as a present sense impression. As to the Confrontation Clause, the call was a hallmark nontestimonial statement meant to address an ongoing emergency, not to proffer evidence for a future prosecution. [By Joe Austin].

Following a conviction at trial, the hero in US v. Estadella appealed his 96-month sentence for possession of a firearm by a convicted felon & PWID methamphetamine. Investigation into a possible abduction and shooting at a motel led police officers to Estadella; subsequent searches led to the discovery of drugs and guns. Pro tips: Do not superimpose your own face onto a movie poster depicting a drug kingpin and, if you do, and if you post a YouTube video about it, expect the government will use the images against you at trial. Plus, if a fight with your roommate escalates and you punch him in the face and he moves out temporarily, leaving all his belongings (including his dogs), rest assured that under the Fourth Amendment he has standing to consent to a search of the home where he still holds the keys. [By Judy Fleming].

Answers:

1. Yes, an attempt to commit a crime of violence always qualifies as a crime of violence under the sentencing guidelines. U.S.S.G. § 4A1.2(a), (d).

2. If the statements are non-hearsay—meaning they were offered only for purposes other than the truth of the matter asserted—they were not testimonial, and the Confrontation Clause doesn’t apply.

3. Evidence the government can use to argue that (1) you controlled the room where the drugs were found and, (2) you, like the movie kingpin, intended to distribute methamphetamine.