Resuming Federal Criminal Defense Blog’s pledge to keep readers informed regarding substantial decisions in the Eleventh Circuit Court of Appeals (and the Court certainly keeps us busy), we take this opportunity to catch up. Following is a summary of substantial decisions from the end of March through April 8.
“Violent Felonies” Under the Armed Career Criminal Act, 18 U.S.C. § 924: In U.S. v. Townsley, No. 08-13517, 2009 WL 929986, (11th Cir., Apr. 08, 2009) (per curiam; unpublished), the Court reversed the defendant’s conviction, holding that the district court erred in counting the defendant’s three previous convictions for carrying a concealed firearm, in violation of Fla. Stat. § 790.01(2), as “violent felonies” pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), following its decision U.S. v. Archer, 531 F.3d 1347 (11th Cir. 2008), id. at *3.
Sentence Not “Too Lenient”: The Court affirmed the defendant’s sentence for pedophilia in the published opinion U.S. v. Irey, No. 08-10997, 2009 WL 806860, (11th Cir., Mar. 30, 2009), rejecting the government’s argument that the defendant’s sentence was “too lenient” and therefore unreasonable, id. at *4. Reaffirming earlier holdings that an appellate court must not substitute its judgment for that of the sentencing court, id. at *2 (citing U.S. v. Melvin, 187 F.3d 1316, 1323 (11th Cir.1999); Williams v. U.S., 503 U.S. 193, 204, 112 S.Ct. 1112 (1992)), the opinion, authored by Chief Circuit Judge Edmondson, contains potentially useful language for the practitioner regarding the gravity of punishment and a defendant’s characteristics:
We appreciate that some people may feel that no sentence would be too harsh for this crime. But that is not the law. And courts never should see the imprisonment in this country of a person for 17-1/2 years as light punishment: although even longer terms of imprisonment can be lawfully imposed in cases, this many years is a substantial portion of a human life-and no serious person should regard it as a trifle.
Furthermore, when the defendant is 50 at the time the sentence is imposed, the consequences must be seen as severe. Moreover, upon Defendant’s release from imprisonment, he will not be free in the way that most Americans are free. He will be subject to rigorous conditions of supervised release by federal authorities. Given the terms of his sentence, never will Defendant be a truly free man again.
Id. at *4.
Presentence Reports: The Court in U.S. v. Martinez, No. 08-14926, 2009 WL 839093 (11th Cir., Apr. 01, 2009) (per curiam; unpublished) observed that Federal Rule of Criminal Procedure 32(i)(1)(A) requires a district court to verify at sentencing “that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report,” id. at *2 (quoting Fed.R.Crim.P. 32(i)(1)(A)), while Rule 32(i)(4)(A)(ii) requires the district court to “address the defendant personally… in order to permit the defendant to speak or present any information to mitigate the sentence,” id. (quoting Fed.R.Crim.P. 32(i)(4)(A)(ii)). The Court held that the drafters of Rule 32 “did not intend to impose a requirement that the district court personally address the defendant when inquiring whether he and his attorney have read and discussed the PSI.” Id. (citing U.S. v. Aleman, 832 F.2d 142, 144 (11th Cir. 1987)). The Court also rejected the defendant’s argument that the district court failed to properly address his statement at sentencing that he wished to “go to trial.” Id. at *4.
Government’s Breach of Plea Agreements: “‘Efforts by the Government to provide relevant factual information or to correct misstatements are not tantamount to taking a position on the sentence and will not violate [a] plea agreement.’” U.S. v. Matisas Mesa, No. 08-14134, 08-14130, 2009 WL 868012, *2 (11th Cir., Apr. 02, 2009) (quoting U.S. v. Block, 660 F.2d 1086, 1090-91 (5th Cir. Unit B Nov. 1981)). “‘A prosecutor has a duty to insure that the court has complete and accurate information concerning the defendant...’” Id. (quoting Block, at 1091). Thus, the government’s informing the sentencing court of the defendants’ inconsistent statements in Matisas Mesa, which resulted in the court’s denial of safety-valve treatment pursuant to U.S.S.G. § 5C1.2(a)(5), was held by the Court not to violate the defendants’ plea agreement in which the government agreed to recommend safety-valve treatment. Id.
Booker is a Two-Way Street: In U.S. v. Beasley, No. 08-14977, 2009 WL 905103 (11th Cir., 2009) (per curiam; unpublished), the Eleventh Circuit held that, even if the sentencing court did not use evidence of three uncharged bank robberies in which the defendant was implicated as “relevant conduct” to enhance his sentence pursuant to U.S.S.G. § 1B1.3, “§ 1B1.3 did not limit the court's discretion to consider the robberies under [18 U.S.C.] § 3661 and [18 U.S.C. §] 3553(a),” id. at *2, in departing upward from the Guidelines range, id. at *2.
Hearsay (Not): In U.S. v. Jiminez, No. 08-14192, 2009 WL 921437, (11th Cir., Apr. 07, 2009), the Eleventh Circuit affirmed the defendant’s conviction on various charges concerning manufacture and distribution of marijuana plants, holding in the process that the district court’s admission of testimony by a police detective regarding a statement by a non-testifying witness that the defendant was involved in a marijuana growing operation was not inadmissible hearsay, finding that the statement was not hearsay since it was not admitted to prove the truth of the matter asserted, but only the fact that it was made, pursuant to Federal Rule of Evidence 801(c), id. at *5.
“National Standard of Care” and “Red Flags” in Prescription Prosecution: When a doctor is prosecuted under the Controlled Substances Act (“CSA”), 21 U.S.C. § 841 for prescribing drugs to patients, he or she must show that they acted in good faith and for a legitimate medical purpose. See U.S. v. Johnston, No. 08-14594, 2009 WL 806740, *4 (11th Cir., Mar. 30, 2009) (per curiam; unpublished) (citing U.S. v. Merrill, 513 F.3d 1293, 1301-02 (11th Cir. 2008)). In Johnston, the district court instructed the jury that it should apply a “national” standard of care in determining whether there was a legitimate medical purpose for the defendant physician’s prescriptions. Id. The defendant argued on appeal that Florida’s standard of care should govern. Id. The Eleventh Circuit held that the defendant had invited the error by previously arguing that jury must find that she acted “outside the course/scope of professional practice, not in accordance with a standard of medical practice generally recognized and acted in the U.S.” id., in order to convict her, id. (Emphasis in original). The Court affirmed the defendant’s conviction, also holding that admission of testimony from witnesses for the government regarding “red flags” for detecting drug abuse in patients was not plain error and was admissible pursuant to Fed.R.Evid. (“Rule”) 702. Id. at *6.
Fear, Loathing and Interstate Extortion: A feud between German immigrants resulted in charges of conspiracy and extortion in violation of the Hobbs Act, 18 U.S.C. § 1951, and the Travel Act, 18 U.S.C. § 1952, in U.S. v. Bornscheuer, NO. 07-10009, 06-14607, 2009 WL 814587 (11th Cir., Mar. 31, 2009). The Eleventh Circuit affirmed the defendants’ convictions, simultaneously reaffirming its holding in U.S. v. Grassi, 783 F.2d 1572 (11th Cir. 1986) that a component of extortion for the purposes of the Hobbs Act is the victim’s fearful state of mind, and that “fear” is “‘a state of anxious concern, alarm or apprehension of harm and it includes fear of economic loss as well as fear of physical violence.’” Id. at *6 (quoting Grassi, at 1577).
404(b): In the process of affirming the defendant’s conviction and sentence for possession of a firearm by a convicted felon and possession with intent to distribute crack cocaine and marijuana in U.S. v. Mobley, No. 08-14449, 2009 WL 914121 (11th Cir., Apr. 07, 2009) (per curiam; unpublished), the Court held that the district court did not abuse its discretion in admitting the defendant’s six-and nine-year-old drug convictions under Federal Rule of Evidence 404(b), since the convictions “were probative of his knowledge of possession, and intent to distribute, crack cocaine and marijuana,” id. at *4.
Criminal History: Prior convictions will be counted separately for the purposes of determining a defendant’s criminal history pursuant to U.S.S.G. § 4A1.2 if the convictions were separated by an intervening arrest. See U.S. v. Mann, No. 08-13716, 2009 WL 931685, *1 (11th Cir., Apr. 08, 2009) (quoting U.S. v. Hunter, 323 F.3d 1314, 1322-23 (11th Cir. 2003)).
Stop, Frisk, Arrest, Convict, Affirm: Where police received a 911 call for assistance and the defendant appeared from behind a house that was not his and attempted to run away when the officers sought to question him as to whether he was armed, finding that a reasonable officer would have believed that the defendant was armed dangerous and would be justified in frisking the defendant, affirming the defendant’s conviction for being a felon in possession of a firearm and the district court’s denial of his motion to suppress. See U.S. v. Hudnell, No. 08-13499, 2009 WL 903467, *2 (11th Cir., Apr. 06, 2009)).
Collateral Estoppel of Habeas Petition: The defendant in U.S. v. Greenwood, No. 07-11592, 2009 WL 839115, (11th Cir., Apr. 01, 2009) filed several habeas petitions seeking to have the Bureau of Prisons recalculate his sentence to account for his “good time” credits, id. at *1. The Eleventh Circuit held that the defendant’s petition was procedurally barred by collateral estoppel because the issue of his good time credits had been resolved in previous petitions. Id. at *3 (citing Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501 (11th Cir. 1990)).
Affirmances of Reductions to Crack Cocaine Sentences, or Denials of Motions to Reduce: U.S. v. Jackson, No. 08-11295, 2009 WL 826833 (11th Cir., Mar. 31, 2009) (per curiam; unpublished); U.S. v. Jiles, No. 08-15792, 2009 WL 839089 (11th Cir., Apr. 01, 2009) (per curiam; unpublished); U.S. v. Blythe, No. 08-12469, 2009 WL 865079 (11th Cir., Apr. 02, 2009) (per curiam; unpublished); U.S. v. Hardy, No. 08-13769, 2009 WL 905101 (11th Cir., Apr. 06, 2009) (per curiam; unpublished); U.S. v. Cantrell, No. 08-12837, 2009 WL 913895, (11th Cir., Apr. 07, 2009) (per curiam; unpublished); U.S. v. Williams, No. 08-14512, 2009 WL 928931 (11th Cir., Apr. 08, 2009) (per curiam; unpublished).
Evidence Sufficient to Support Convictions: U.S. v. Jenkins, No. 08-13877, 2009 WL 865214 (11th Cir., Apr. 02, 2009) (attempted transfer of obscene material to a minor, in violation of 18 U.S.C. § 1470); U.S. v. Schmitz, NO. 08-13648, 2009 WL 903458 (11th Cir., Apr. 06, 2009) (use of an interstate facility to attempt to entice a juvenile to engage in a sexual act, in violation of 18 U.S.C. § 2422(b)); U.S. v. Ferroni-Carli, No. 07-15831, 2009 WL 913538 (11th Cir., Apr. 07, 2009) (falsely pretending or assuming to be a duly accredited foreign diplomat, in violation of 18 U.S.C. § 915); U.S. v. Blango, No. 08-10137, 2009 WL 921275 (11th Cir., Apr. 07, 2009) (armed bank robbery and using a firearm during a crime of violence).
Sentences Affirmed under Booker: U.S. v. Williams, No. 08-10185, 2009 WL 817498 (11th Cir., Mar. 31) (per curiam; unpublished); U.S. v. Centella, No. 08-15016, 2009 WL 903436, (11th Cir., Apr. 06, 2009) (per curiam; unpublished).
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