Legal News & Updates

United States v. Wheeler, No. 17-15003 (Oct. 21, 2021)

In United States v. Wheeler, No. 17-15003 (Oct. 21, 2021) (Wilson, Lagoa, Brasher) (per curiam), the Court reversed a judgment of acquittal for two defendants and affirmed the convictions and sentences for three defendants involved in a telemarketing scheme that tricked investors into making stock purchases. First, notwithstanding the district court’s judgment of acquittal, the Court found that the evidence was sufficient to support the substantive mail and wire fraud convictions.  Although not overwhelming, and some misrepresentations to the investors did not affect the nature of the bargain under Takhalov, the evidence was sufficient for a jury to find that the defendants intended to defraud the investors.  The evidence was also sufficient as to conspiracy because, even if they did not know the extent of the fraud, the evidence was sufficient that the defendants knew the objective of the conspiracy and decided to join it. Second, the Court found that the evidence was sufficient to support the convictions for the other three defendants.  The evidence was sufficient that one defendant aided and abetting a transaction, even if he did not personally participate in it, by discouraging the victim from going to the authorities.  As to another count, the evidence was [...]

October 22nd, 2021|

United States v. Giron, No. 20-14018 (Newsom, Lagoa, Anderson) (Oct. 13, 2021)

In United States v. Giron, No. 20-14018 (Newsom, Lagoa, Anderson) (Oct. 13, 2021), the Court—without oral argument or defense counsel—affirmed the denial of a pro se motion for compassionate release. First, the Court held that the district court did not err by relying on the policy statement in USSG 1B1.13.  The Court held in Bryant that the policy statement binds district courts in their determination as to whether “extraordinary and compelling” reasons exist.  The defendant’s medical conditions, including high cholesterol, high blood pressure, and coronary artery disease, were manageable in prison notwithstanding the pandemic, and so he did not satisfy the criteria in Application Note 1(A).  And the defendant could not invoke the catchall provision in Application Note 1(D) because, under Bryant, only the BOP Director could invoke that provision. Second, and relying on its recent decision in Tinker, the Court held that it is not an abuse of discretion for a court to deny relief based solely on a lack of “extraordinary and compelling” reasons, without considering danger to the public or the 3553(a) factors.  Before granting relief, a court must find that all three criteria are satisfied, so it may deny relief based on a lack of extraordinary [...]

October 18th, 2021|

United States v. Perry, No. 16-11358 (Sept. 29, 2021)

In United States v. Perry, No. 16-11358 (Sept. 29, 2021) (Grant, Marcus, Axon (N.D. Ala.)), the Court affirmed the defendants' convictions and sentences. Defendants were indicted on numerous charges related to their involvement in a multi-year, multi-state drug distribution organization--namely, conspiracy to possess with intent to distribute in excess of 5kg of cocaine and in excess of 280g of cocaine base.  They proceeded to trial and were found guilty.  Defendant Perry was sentenced to 240 months in prison while Defendant Ragin was sentenced to 180 months in prison. On appeal, Defendant Perry argued that the district court erroneously admitted the testimony of DEA task force officer Lee because Lee was not properly qualified as an expert, and because his opinion testimony improperly blurred the line between expert and lay witness testimony and drew impermissible inferences for the jury.  Lee was qualified as an expert "in coded drug language and methods of trafficking, as well as the manufacture of crack cocaine from powder cocaine," and testified extensively as to the meaning of certain words and phrases used in numerous intercepted phone calls that were introduced at trial. The Court first found that Lee was properly qualified as an expert in interpreting code words [...]

September 29th, 2021|

United States v. Tinker, No. 20-14474 (Sept. 28, 2021)

In United States v. Tinker, No. 20-14474 (Sept. 28, 2021) (Wilson, Newsom, Branch) (per curiam), the Court held that a district court does not procedurally err when it denies a request for compassionate release based on the 18 U.S.C. 3553(a) sentencing factors (or U.S.S.G. 1B1.13's policy statement) without first explicitly determining whether the defendant could present "extraordinary and compelling reasons." The Court noted that nothing on the face of 18 U.S.C. 3582(c)(1)(A) requires a court to conduct the compassionate-release analysis in any particular order.  Therefore, nothing requires a court to first find "extraordinary and compelling reasons" for release before considering the 18 U.S.C. 3553(a) factors or U.S.S.G. 1B1.13's policy statement.  Under 3582(c)(1)(A), the court must find that all necessary conditions are satisfied before it grants a reduction--i.e., support in the 3553(a) factors, extraordinary and compelling reasons, and adherence to 1B1.13's policy statement.  The absence of even one would foreclose a sentence reduction.  Therefore, a district court does not err where, as occurred  in this case, it assumes that "extraordinary and compelling reasons" exist in the 3582(c)(1)(A) context. The Court further found no error in the district court's analysis of the 3553(a) factors.

September 29th, 2021|

Somers v. United States, No. 19-11484 (Sept. 28, 2021)

In Somers v. United States, No. 19-11484 (Sept. 28, 2021) (Jill Pryor, Anderson, and Marcus), the Court granted the petition for rehearing, vacated its previous opinion and judgment, substituted this opinion in its place, and certified to the Florida Supreme Court the following two questions about the nature of Florida's assault statutes: Does the first element of assault as defined in Fla. Stat. § 784.011(1) -- "an intentional, unlawful threat by  word or act to do violence to the person of another" -- require specific intent? If not, what is the mens rea required to prove that element of the statute? The Court reconsidered its opinion after the Supreme Court's decision in Borden v. United States, 141 S. Ct. 1817 (2021).  In supplemental briefing, movant argued that Borden abrogated Turner v. Warden Coleman FCI, 709 F.3d 1328 (11th Cir. 2021)--wherein the Court held that a Florida conviction for aggravated assault categorically qualified as a violent felony under the ACCA's elements clause--because Florida aggravated assault is not a specific-intent crime.  In response, the government argued that the specific intent to threaten another is an element of Florida aggravated assault.  Because the Florida Supreme Court has not answered the question of whether Florida aggravated assault requires specific intent, or [...]

September 29th, 2021|

United States v. Watkins, No. 18-14336 (Sept. 16, 2021)

In United States v. Watkins, No. 18-14336 (Sept. 16, 2021) (Luck, Ed Carnes, Marcus), on remand from the en banc Court, the Court reversed and remanded to the district court for further proceedings. The Court originally reversed the district court's order granting the defendant's motion to suppress on the government's interlocutory appeal.  Though the government conceded that it violated the Fourth Amendment when GPS tracking devices placed inside an intercepted package re-activated inside the defendant's home, the Court held that there was a "reasonable probability" that the evidence would have inevitably been discovered because the agents would have conducted the same knock and talk with the same result. The case was then reconsidered en banc.  The en banc Court held that the standard of proof that the government must meet in order to establish that evidence would have been inevitably discovered is the preponderance of the evidence, not a "reasonable probability."  The en banc Court remanded the case back to the original panel for further proceedings consistent with its holding. On remand, the Court, applying the preponderance of the evidence standard--whether the evidence more likely than not would have been discovered--concluded that it would have been.  In so holding, the Court found [...]

September 16th, 2021|
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