In United States v. Penn, No. 21-12420 (Mar. 24, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed the defendant’s ACCA sentence based on prior Florida sale-of-cocaine convictions. In holding that the prior convictions were ACCA “serious drug offenses,” the Court rejected three arguments. First, circuit precedent foreclosed the defendant’s argument that a serious drug offense have a mens rea element requiring the defendant know the illicit nature of the substance, which Fla. Stat. 893.13 lacks.  Second, and in a question of first impression resulting in an extended discussion, the Court held that, although the least culpable conduct prohibited by 893.13 was “attempted transfer,” that conduct was covered by the word “distribution” in the ACCA definition and so was not overbroad. Third, applying Wooden, the Court held that the two prior convictions occurred on separate occasions because they occurred 30 days apart, and the Court rejected under plain error the defendant’s Apprendi argument, which was raised for the first time on appeal, because there was no precedent directly resolving the issue. https://media.ca11.uscourts.gov/opinions/pub/files/202112420.pdf http://defensenewsletter.blogspot.com/

In United States v. Batmasian, No. 21-12800 (Mar. 24, 2023) (Branch, Luck, Antoon), the Court held that the district court lacked jurisdiction to consider the pardoned defendant’s motion to expunge his conviction. The defendant filed his expungement motion in the district court that convicted him. But the Eleventh Circuit rejected the defendant’s reliance on the doctrine of ancillary jurisdiction. No court had ever expressly embraced such jurisdiction for a constitutional expungement request. And the Court declined to do so because the alleged constitutional violation—a purported denial of his First Amendment right to donate to charities—was the natural result of an otherwise valid arrest or conviction. https://media.ca11.uscourts.gov/opinions/pub/files/202112800.pdf http://defensenewsletter.blogspot.com/

In United States v. Files, No. 21-12859 (Mar. 24, 2023) (Newsom, Luck, Tjoflat), the Court affirmed the denial of the defendant’s motion for a reduced sentence under Section 404 of the First Step Act. The question in the case was whether the district court had authority to reduce the defendant’s sentence for a non-covered offense in addition to a covered offense. In Denson, the Court had previously stated that district courts could reduce a sentence only for a covered offense.  Here, the Court concluded that this statement in Denson was part of the holding of the case. And, it concluded, the Supreme Court’s decision in Concepcion did not abrogate that holding. The Court engaged in a lengthy discussion (which Judge Luck did not join) about when a statement is “necessary” to the result and thus forms part of the holding rather than dicta. Judge Newsom, joined by Judge Tjoflat, concurred to explain why he believed it is a bad idea for appellate courts to issue alternative holdings. https://media.ca11.uscourts.gov/opinions/pub/files/202112859.pdf http://defensenewsletter.blogspot.com/

In United States v. Morel, No. 20-14315 (Mar. 23, 2023) (William Pryor, Rosenbaum, Marcus), the Court affirmed the defendant’s convictions for importing cocaine. First, the district court interrupted the trial to instruct the jury about the law of conspiracy after a witness incorrectly used the term incorrectly, implying that he had to personally know the defendant in order to conspire with him. The district court’s sua sponte instruction was not an discretion or an impermissible departure from the court’s neutral role, as it merely and accurately clarified the law in order to prevent confusion, and did not otherwise comment on the witness’s testimony. Second, the evidence was sufficient to support the jury’s finding that the defendant knew that the contraband on board the vessel was cocaine in particular.  Applying the prudent-smuggler doctrine, the Court emphasized, among other facts, that the defendant was communicating and working closely with one of the co-conspirators (who knew about the cocaine), the defendant was invited to unload the cocaine (which was visible in the packages), and the defendant was privy to the time and location of the drug shipment and its final destination. https://media.ca11.uscourts.gov/opinions/pub/files/202014315.pdf http://defensenewsletter.blogspot.com/

In United States v. Williams, No. 21-12877 (Mar. 23, 2023) (William Pryor, Hull, Marcus), the Court affirmed the denial of the defendant’s motion for a reduced sentence under Section 404 of the First Step Act. The defendant was eligible for a reduced sentence, and his life sentence exceeded the 30-year statutory maximum that applied after retroactive application of the Fair Sentencing Act. However, the Court held that the district court had the discretion to leave that life sentence in place because the text of the Fair Sentencing Act did not require the court to reduce any sentence, and the Supreme Court confirmed that understanding in Concepcion.  The Court rejected the defendant’s argument that leaving a sentence above the new statutory maximum was a per se abuse of discretion.  The Court explained that defendants cannot use Section 404 to re-litigate the legality of their sentences.  Finally, the district court adequately explained its decision to deny the motion by addressing the defendant’s arguments and weighing the 3553(a) factors. https://media.ca11.uscourts.gov/opinions/pub/files/202112877.pdf http://defensenewsletter.blogspot.com/

In United States v. Clowers, No. 20-13074 (Mar. 14, 2023) (Jill Pryor, Grant, Anderson), the Court affirmed the denial of a motion for reduced sentence under Section 404 of the First Step Act. The Court first agreed with the parties that engaging in a continuing criminal enterprise involving crack under 21 U.S.C. 848 was a “covered offense” under Section 404.  The defendant received a mandatory life sentence before Apprendi, and the judge rather than a jury made drug quantity findings for purpose of sentencing.  Applying the Eleventh Circuit’s decisions in Jones/Jackson, the Court held that the district court remained bound by that judge-made drug-quantity finding when determining what the statutory range would be under the Fair Sentencing Act.  Because the statutory range would remain the same based on that judge-made drug-quantity finding, and because the defendant received the statutory minimum sentence of life, the district court could not reduce his sentence under Section 404. https://media.ca11.uscourts.gov/opinions/pub/files/202013074.pdf http://defensenewsletter.blogspot.com/