Our apologies for playing catch-up, but our summary of the primary, meaningful criminal opinions by the Eleventh Circuit will continue this week. Following is a summary of the decisions for the week of March 17, 2009.
In Salazar v. U.S., No. 07-13715, 2009 WL 684772 (11th Cir., Mar. 17, 2009), the Eleventh Circuit reversed the district court’s denial of the defendant’s motion pursuant to 28 U.S.C. § 2255 to vacate his sentence for possessing with the intent to distribute crack cocaine based upon ineffective assistance of counsel, where defendant’s counsel failed to call as witnesses at trial two persons who could have corroborated that the defendant denied possessing any cocaine at the time of his arrest, id. at *2.
The Court affirmed the district court’s denial of a reduction under the safety-valve provision pursuant to U.S.S.G. § 5C1.2 for a defendant convicted of conspiracy to manufacture and possess with intent to distribute marijuana plants in U.S. v. Cruz, No. 08-11625, 2009 WL 684789 (11th Cir., Mar. 17, 2009), observing that the defendant’s refusal to testify at sentencing left the district court with little ability to access his credibility and the defendant had failed to carry his burden, id. at *2.
In U.S. v. Valdex, No. 07-14721, 2009 WL 684751 (11th Cir., Mar. 17, 2009), the Court held that the defendant in a prosecution for health care fraud “invited” any error in calculating the amount of loss under U.S.S.G. § 2B1.1 by urging the trial court to adopt the amount of loss contained in the presentence report, id. at 1. It also held that the trial court did not clearly err in applying a sophisticated means enhancement under U.S.S.G. § 2B1.1(b)(9)(C) where the defendant “recruited beneficiaries and sought out doctors so as to aid in hiding the illegality of his Medicare claims, and converted [a corporation] into a pharmacy through which he continued to defraud Medicare…” Id. The Court also held that the defendant’s sentence was within the Sentencing Guidelines range and therefore substantively reasonable, pursuant to U.S. v. Talley, 431 F.3d 784, 788 (11th Cir. 2005), and that “relevant uncharged or acquitted conduct may be taken into account in sentencing, as long as such conduct is proven by a preponderance of the evidence and the court clearly applied the Guidelines as advisory.” Id. (citing U.S. v. Faust, 456 F.3d 1342, 1347-48 (11th Cir. 2006)).
The Court affirmed the defendant’s above-Guidelines sentence for travel with intent to engage in a sexual act with a juvenile in U.S. v. Smith, No. 08-11665, 2009 WL 693342 (11th Cir., March 18, 2009), noting that the district court could upwardly depart in sentencing the defendant based upon violations of the defendant’s supervised release, pursuant to U.S.S.G. § 7B1.4, comment. (n.3), id. at *2.
In
U.S. v. Whitehead, No. 08-13201, 2009 WL 691184 (11th Cir., Mar. 18, 2009), the Court affirmed the denial of the motion for a sentencing reduction, brought pursuant to 18 U.S.C. § 3582(c)(2) of the defendant, who was convicted of various drug and crack cocaine offenses, holding that the Sentencing Commission’s Amendment 706 to U.S.S.G. § 2D1.1(c) in November 2007, which provided a two-level reduction in base offense levels for certain crack-cocaine offenses, did not affect the guideline ranges of defendants who were sentenced as career offenders under U.S.S.G. § 4B1.1,
id. at *3 (citing
U.S. v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008)). The Court also held that the defendant was ineligible for the reduction despite the fact that he had been granted a downward departure pursuant to U.S.S.G. § 4A1.3, observing that “[t]he critical fact… is that the district court used the offense level from the career offender guideline to calculate [the defendant’s] applicable guideline range,” rather than § 2D1.1.
Id. at *4.
The Court affirmed the district court’s denial of a motion for reduction pursuant to § 3582(c)(2) by a defendant convicted of conspiracy to possess with the intent to distribute cocaine and cocaine base in U.S. v. Val Saint, No. 08-12726, 2009 WL 693341 (11th Cir., Mar. 18, 2009), noting that Amendment 711 reversed Amendment 706 on the issue of converting base offense level into a base offense level for marijuana, holding that the defendant’s base offense level would have remained the same, id. at *2.
In U.S. v. Traywick, NO. 08-14092, 2009 WL 693339 (11th Cir. Mar. 18, 2009), the Court affirmed the defendant’s sentence for crack cocaine offenses pursuant to its holding in U.S. v. Melvin, No. 08-13497, 2009 WL 236053 (11th Cir. Feb. 3, 2009) that, regardless of U.S. v. Booker, 543 U.S. 220 (2005), U.S.S.G. § 1B1.10(b)(2)(A) and policy statements prevent a court from reducing a defendant’s term of imprisonment under § 3582(c)(2) to a term that is less than the minimum of the amended guidelines range determined under U.S.S.G. § 1B1.10(b)(1), id. at *2 (citing Melvin, at *5, *7, *9-*10). The Court also held that § 3582 does not include a notice or hearing provision. Id. The Court further held that the Supreme Court’s holding in Kimbrough v. U.S., 128 S.Ct. 558 (2007) that courts can deviate from the 100-to-1 equivalency ratio of cocaine base to powder cocaine in U.S.S.G. § 1B1.13 and Amendment 503 did not amount to an amendment of the Guidelines and was therefore inapplicable to a § 3582(c)(2) motion. Id.
The Court also followed its holding in Melvin in U.S. v. St. George, No. 08-12226, 2009 WL 707858 (11th Cir., Mar. 19, 2009), and further reemphasized that, in re-sentencing a defendant under § 3582(c)(2), a district court must leave intact all guideline application decisions made during the initial sentencing, does not have authority to revisit factual matters such as drug quantity, and cannot apply Booker, id. at *2 (citing U.S. v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000); U.S. v. Cothran, 106 F.3d 1560, 1562 (11th Cir. 1997)). And in U.S. v. Roberts,
NO. 08-13753, 2009 WL 714329 (11th Cir., Mar. 19, 2009) it again affirmed that Booker does not apply to resentencings under § 3582(c)(2) pursuant to § 1B1.10(b)(1), id. at *1.
The denial of the defendant’s proposed minor role reduction under U.S.S.G. § 3B1.2 was affirmed in U.S. v. Bataz Martinez, No. 04-15405, 2009 WL 707772 (11th Cir., Mar. 19, 2009), a drug prosecution, “because [the defendant] failed to demonstrate that he was less culpable than most of the other participants in the offense,” id. at *2. The defendant’s sentence was also affirmed under Booker based upon the defendant’s failure to point to any evidence of a reasonable probability that he would have received a lesser sentence had he been sentenced under advisory guidelines. Id. at *3.
In U.S. v. Massengill, No. 08-15207, 2009 WL 714259 (11th Cir., March 19, 2009), the Court denied the defendant’s attorney’s motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) and remanded to the district court to amend its written judgment were the judgment failed to include any reasons for the court’s upward departure from the guidelines range, agreeing with the Second Circuit in U.S. v. Hall, 499 F.3d 152 (2d Cir. 2007) that the “better course” where a court omits the reasons for a departure in a written order is to affirm the substance of the judgment and remand to the district court for the sole purpose of amending the written judgment to comply with 18 U.S.C. § 3553(c)(2), which requires a written statement of reasons for the sentence in the written order of judgment, id. at *4 (citing Hall, at 153).
In U.S. v. Villegas-Tello, No. 08-13325, 2009 WL 714214 (11th Cir., Mar. 19, 2009), the Court held that Immigration and Customs Enforcement agents possessed probable cause to arrest the defendant for marijuana offenses based upon the totality of the circumstances, and that follow-up questions by arresting officials for the sake of clarification do not violate Miranda v. Arizona, 384 U.S. 436 (1966), id. at *4 (citing U.S. v. Rhodes, 779 F.2d 1019, 1032 (4th Cir. 1985); U.S. v. Gonzales, 121 F.3d 928, 939 (5th Cir. 1997); Andersen v. Thieret, 903 F.2d 526, 532 (7th Cir.1990); Butzin v. Wood, 886 F.2d 1016, 1017-18 (8th Cir. 1989)). The Court also affirmed the denial of one of the defendants’ motion in limine pursuant to Bruton v. United States, 391 U.S. 123 (1968), holding that an alleged statement by a co-defendant was not incriminating on its face to the defendant; that sufficient evidence supported the defendants’ convictions; and that because one of the defendants performed the same or similar role within the conspiracy as his codefendants, he was not less culpable than most other participants in his relative conduct, he was not entitled to a minor role reduction under § 3B1.2. Id. at *5, *6, *7 (citing U.S. v. DeVaron, 175 F.3d 930, 937 (11th Cir. 1999)).
The Court affirmed the denial of the defendant’s motion to vacate his convictions for conspiracy to commit bank fraud and money laundering pursuant to 28 U.S.C. § 2255 in Baughman v. U.S., No. 08-14279, 2009 WL 714212 (11th Cir., Mar. 19, 2009), concluding that record supported the finding of the district court that the defendant never instructed his attorney to file a notice of appeal, and consulted with him on his right to appeal, id. at *3, *4.
In U.S. v. Bohning, NO. 07-15549, 2009 WL 724036, (11th Cir., Mar. 20, 2009), a prosecution of the defendant for various sex offenses involving minors, the Court held that the defendant’s Sixth Amendment right to counsel and Fifth Amendment due process rights were not violated by the government placing a lis pendens on his home, which the defendant would have sold to pay legal fees, discussing its prior decision in United States v. Register, 182 F.3d 820 (11th Cir. 1999), id. at *1, *2 (citing Register, at 834). The Court also held that the district court’s denial of the defendant’s motion to withdraw his guilty plea was not unreasonable. Id. at *3 (citing United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006))
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